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What happens to the family home after divorce?

Going through a divorce is stressful, not only because your relationship has broken down, but because it can have a massive effect on your living arrangements and finances.

If you own a home together, this can make things particularly complex, as you will need to decide what to do with the property, including whether one of you will continue to live there or whether the property should be sold. This can become even more challenging if you have children together, whose needs will have to be accounted for.

It can make life easier if you can come to a voluntary agreement over what to do with your home following a separation, as this can allow you to avoid the time, cost and likely conflict involved in taking court action. However, it’s important to think about all of the ways any settlement you make could affect your life and we strongly advise taking legal advice from an experienced family lawyer before agreeing to anything.

What are the options when it comes to dividing the family home?

If you and your ex-partner can come to an agreement, there are several options you can choose when deciding how to divide the family home. They are:

  • Sell the home and both of you move out – you can then divide the money between you.
  • One person buys the other out
  • Keep the home as it is, and one of you moves out.
  • Transfer part of the value of the property from one partner to the other as part of the financial settlement. The partner who gave up their share of their ownership rights would have an interest in the home and receive a percentage of the value when it’s sold.

If you can’t come to an agreement you may have to attend court where a judge will make a decision based on a variety of factors. It is important to continue to pay your mortgage while you are negotiating how the property will be divided.

Prioritising young children when dividing the family home

If you have children, the courts will generally give priority to whoever will continue to care for them. It is important to keep your children in mind with every decision that you make in order the protect their wellbeing and to ensure that the impact on their normal routine is as minimal as possible.

In some instances, obtaining a Mesher Order can be beneficial for couples with young children. A Mesher Order allows one of you to remain in the family home with your children, and the property remains under both names until a certain trigger event happens. This could be when the children leave school, or when they reach a certain age. This can be helpful for the remaining spouse, as they may not have the financial means to obtain another mortgage on another property, and it also minimises the impact the divorce has on your children’s lives.

How property ownership affects dividing the family home

If the property is solely owned by your ex-partner you may be able to register your interest in the property to protect your rights. The process for this varies depending on where you live and whether the property is registered. A solicitor can give you some guidance on this.

However, if it is the marital home, both you and your spouse have a legal right of occupation for the length of the marriage. This usually means that both of you will receive some share of the sale of the house, even if it was only registered under one of your names.

If you and your partner own the property as joint tenants, then you should be entitled to an equal share of the property. If you are tenants in common, it is possible to split the share of the property as you see fit, so one person may own more than the other.

What happens if you can’t afford to pay the mortgage once divorced?

It’s important to remember that if your name is on the mortgage, you’re liable for the whole debt. It is advisable to contact your mortgage lender to let them know you’re breaking up and to seek financial and legal advice as soon as possible.

If you find that you cannot afford to keep up with your mortgage payments alone, then you may be able to apply for a ‘guarantor mortgage’. This means that the guarantor agrees to pay the mortgage payments if you can’t. This is quite a responsibility, so it’s important for both you and your guarantor to seek independent legal advice before entering into such an agreement.

At Crisp & Co, we are firm believers in using mediation for divorce, allowing couples to agree a financial settlement and other practical details while avoiding unnecessary conflict. Using our specialist training and experience in this area, we work with our clients to provide the best possible solution, quickly and simply, allowing you to move on with your life.

If you need advice on dealing with your family home following divorce or separation, please contact us on 020 3281 7887.

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