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One of the most pressing questions people have during a divorce is: who gets to keep the house?

While there is no standard answer to this question, there are some factors that the court looks at when deciding who gets the house in a divorce.

This blog gives you a detailed guide of all the possibilities including:

  • What happens if you both own the house?
  • What happens if one partner doesn't own the property, but lives there?
  • What happens if you have children, or the property is rented?
  • And more...

Lets start...

Why Is It Important To Know Who Gets The House In A Divorce?

The marital residence can often be a source of significant dispute during a divorce.

The family house is usually the most valuable marital asset; but alongside the purely financial considerations, moving out or selling the family home can also be very disruptive. Especially if there are children involved.

An infographic with a picture of a house explaining the concept of matrimonial property

For these reasons, disputes over the house are incredibly common during divorce or <bloglink>civil partnership dissolution.<bloglink> Often one partner wants to sell up and move on quickly, while the other partner wants to stay in place; whether that is because of the children's schooling; for financial reasons; or simply because they have a sentimental attachment to the property.

So, if such a dispute does arise it's important for you to know what factors are taken into account when dealing with the family home during a <bloglink>divorce settlement.<bloglink>

Working Out Who Gets The House In A Divorce

Working out what happens to the house in a divorce depends firstly on identifying whether or not the house will be classed as 'matrimonial property'...

Is The House Considered "Matrimonial Property"?

The first thing to do is to determine whether or not the house is considered "matrimonial property"

Matrimonial property is any asset (including a house) that was purchased during the marriage. Even if the house is only registered in one partner's name, if it was bought during the marriage then it will be considered "matrimonial property" and will be divided between spouses when they divorce (this is the case for the main family home, as well as any other properties you own, such a holiday home or any rental investment properties).

But, what about properties bought before you married?

If it was used as the main family (where you lived together), then it will be considered matrimonial property even if it was purchased by one partner before you married.

Other properties purchased before the marriage (such as holiday lets or rental) will generally not be considered matrimonial property, and will be kept by the spouse that owns them when you divorce.

An infographic explaining matrimonial property
Any asset or property bought during the divorce will be considered "matrimonial property"

Is The House Split "50/50"?

Once you've determined that the house is matrimonial property, and will be shared when you divorce, then the next question arises:

How will the property be divided between you?

During a divorce the facts of the marriage are reviewed individually before the court rules on how the home should be dealt with. This is includes whether one of you can continue to live in the property.

There is an underlying principle of fairness in all cases, and a 50:50 split is usually taken as the starting point by the courts.

However, to ensure that fairness is maintained between the parties, there can often be a lot of reasons for the court to depart from the 50:50 rule by awarding one partner a bigger share of the property, depending on the individual circumstances of the case. When the court make this decision they will consider the factors set out by <bloglink>section 25 of the Matrimonial Causes Act 1973<bloglink>– including:

  • The income, earning capacity, property, and other financial resources each party has or is likely to have in the foreseeable future.
  • The financial needs, obligations, and responsibilities each party has or is likely to have in the foreseeable future.
  • The standard of living enjoyed by the family before the breakdown of the marriage (including whether either party made a contribution to that standard through homemaking or childcare).
  • Whether there are any children to the marriage and their needs.
  • The age of the parties and length of marriage.

If there are any children to the marriage under the age of 18, then their welfare will be the court's primary consideration.

Once the court has considered the above factors, they can issue a number of Orders (called "Property Adjustment Orders") to decide what happens with the house when you divorce...

1. Immediate Sale Of The Property:

The first possible option is to order the sale of property and the division of the sale proceeds between the parties (on the basis of an equal division or an unequal split, depending on the circumstances of the case).

This is often the most straightforward way to deal with the property when you divorce. For this reason, it is a very common outcome, particularly if either partner needs funds from the property sale before they can afford to buy somewhere else to live. However, it might not be appropriate where there are good reasons for one party to stay in the property (such as childhood schooling arrangements etc), or where you <bloglink>can't agree about selling the property.<bloglink>

2. Deferred Sale Of The Property

The second possible scenario is that the property stays in joint names until its future sale.

Deferred sales are often used where there are children under the age of 18, who would benefit from staying in the property. The parent with day to day care of the children stays in the house, while the other spouse moves out. The sale of the property is then deferred until as specified date or event (often the children reaching a certain age or an educational level). If a sale is postponed, several other factors must be considered, such as who will pay the mortgage in the meantime and how the sale profits will be divided when the property is eventually sold.

There are two types of deferred order:

Mescher Orders

Mesher orders let one spouse and the children stay in the family home until the courts make a decision on the financial settlement. Despite one of you occupying the house, the property will stay in both of your names during the time period.

When a Mesher Order expires, it is normally when the youngest child reaches the age of 18 or when they complete their secondary school education, whichever comes later. However, in rare cases, the order may very well get extended to cover the youngest child's further education, such as university, college, or an apprenticeship.

Mesher Orders are often a far from perfect solution, as they mean both parties are still financially tied to each other and won't be able to achieve a 'clean break'. The spouse that moves out will also have their capital tied up in the property for a long time, which may make it difficult for them to afford a new property, and can have Capital Gains Tax and Stamp Duty implications (therefore expert legal advice is essential before consenting to this sort of agreement).

Despite the fact that a Mesher Order can be a poor solution for a number of reasons, in certain circumstances it is the only viable option for meeting the housing needs of each divorced spouse and their children.

Martin Orders

A Martin Order, on the other hand, is a deferral of the sale of the family home that has nothing to do with the ages of any children. As a result, it is more commonly used when neither party has any children under the age of 18.

The 'trigger event' (when the home must be sold) is plainly different with this form of order, and can include:

  • Re-marriage or cohabitation with a new spouse by the occupying party
  • A set date
  • A period of time (eg for 12 months)

  • The court will generally only make a Martin Order where they decide that a wealthier spouse does not currently need access to their funds locked up in the couple's former home; and that the less wealthy spouse could not immediately afford to buy their own property if they were ordered to move out. The court will therefore delay the sale until a time when they determine it would be reasonable for the financially weaker spouse to buy their own place. In extreme cases the occupying party may even be permitted to reside in the house for the remainder of their life. Only after that party dies would the property be sold.

    3. Transferring Ownership Of The Property To One Party, With A Legal Charge Back For The Other Party

    If one partner transfers their rights in the property to their spouse, they can then become a charge holder (which is like a <bloglink>mortgage charge<bloglink>) and will collect their share of the property value when the charge becomes enforceable (usually upon sale of the property).

    This is is another type of deferred sale, similar to a Mesher or Martin Order, and is frequently related to a child's age. This method may also have tax implications and raises a number of additional concerns, such as obtaining the agreement of any existing mortgage lenders and completing the procedures necessary to transfer the property and record the legal charge, and so obtaining prior legal advice is essential.

    4. A Property "Buy Out"

    Another order the court can make is to set a "buy-out" amount for transferring full ownership of the property to one spouse.

    The spouse receiving full ownership of the property will have to "buy-out" their partner, by making a cash payment equivalent to the value of the other partner's share in the house.

    Estimating the right lump sum payment is similar to selecting how to split the proceeds upon an immediate sale, and will depend on calculating the value of the equity in the house, and the court then establishing whether this should be shared equally or unequally.

    Before this option is selected the court will also consider a number of other factors, such as how much the party that wants to stay is able to raise for the buy-out (often via re-mortgaging), and how much the departing party needs as a deposit to purchase a new home elsewhere.

    Agreeing Who Gets The House By Consent

    So, now we've considered the main orders a court can make when it comes to the family home, and how they decide what share each party should receive.

    But what if you want to avoid going to court?

    Well, if you and your partner can agree on a fair distribution of your matrimonial assets, then all you have to do is go to court and get a ‘consent order’ (agreed between you usually with the help of a solicitor or <bloglink>divorce mediator<bloglink>).

    A <bloglink>consent order<bloglink> is a legal document that confirms your financial agreement to the court on how any assets such as money, property, <bloglink>pensions<bloglink>, investments or <bloglink>inheritance<bloglink> will shared following your divorce.

    A consent order

    Having a court accept a financial consent order effectively "completes" your divorce by cutting all financial links and prohibiting any future claims by either of you.

    Of course, this type of agreement is often preferable to the expense and stress of contested court proceedings.

    So if you can agree on any of the main options for sharing the property (immediate sale and split; delayed sale; or a buy out), and how much each partner should get as part of your overall divorce settlement, then you can have the terms drawn up in a consent order and <bloglink>sent to court<bloglink> for approval (approval is largely an administrative process and you will not need to physically attend court).

    However, in a scenario where either of you simply cannot agree, you can still request the court to make a decision for you during a contested hearing.

    Who Gets The House In A Divorce With Children?

    When deciding how to handle the house in a divorce with children the court must consider all of the facts of the case. This is directly tied to child custody, and the primary caregiver usually has the upper hand. The wellbeing of any child in the family who has not reached the age of eighteen is the court's primary concern, and is often a reason they depart from the starting point of a 50:50 split.

    A child playing with a wooden house

    The court will try to provide stability for the children wherever possible and often it is best for the children to stay in the current property; particularly if school catchment areas would be affected by a move. However, depending on the facts of your situation, this may or may not be feasible. As with all matrimonial property, the courts will have regards to the factors listed at <bloglink>section 25<bloglink> of the Matrimonial Causes Act 1973 when making a determination (discussed above).

    Who Gets To Stay In The House During A Divorce If The Property Is Rented?

    So far we've considered what happens to the house if you are the property owners. But what happens in a divorce when you are renting?

    Here, the situation is quite different. You don't own the house, so clearly there will be no sale proceeds to divide between you.

    Instead, the two main issues for renting couples generally are:

    1. Can we end our tenancy if we both simply want to move out?


    2. What happens if one or both of you wants to stay in the property?

    If you both simply want to move out, then you just need to give notice to your landlord. Depending on your <bloglink>tenancy agreement<bloglink>, if there are any early exit charges you may need to agree how these are divided or paid for as part of your overall divorce settlement agreement.

    If one or both of you want to remain in the rented property, then neither can make the other leave. This is the case even if only one of you are named on the tenancy agreement. This is because in marriage you both have <bloglink>'home rights'<bloglink> which can be protected by the courts. So, if the tenancy is in your partner's name only and they are asking you to leave against your wishes, you can seek an occupancy order from the courts. This is an order that determines who has the legal right to live in the family home (including a rental). An <bloglink>occupation order<bloglink> can also be used if you temporarily left the property, and your partner is now refusing to let you return.

    Who Is Responsible For Paying The Mortgage During A Divorce?

    If you take out a joint mortgage with your spouse, you are <bloglink>jointly and severally<bloglink> liable for the full amount of the loan (regardless of whether or not you continue living in the home). It is not enough to suggest that you have paid your half of the loan and that your spouse should therefore pay the other half; or that you have moved out. Mortgage companies only care that they get paid on time, in full. If you don’t make full monthly payments both of you could end up with a bad credit rating—which can cause problems in the future. In extreme cases it may lead to repossession of the property.

    This is not to say you necessarily you have to split the cost equally. If you can agree, you can choose how much each of you will give as long as the payment is made in full. But if you can't agree, stopping payment unilaterally could risk the property being repossessed.

    A hand signs a cheque

    Does How Long We Were Married Affect Who Gets The House?

    In "long marriages" the distribution of wealth and debt is more likely to be equal. If the marriage is considered long, the financially weaker party is likely to be awarded a larger portion of the marital assets, and this includes the family home. If the marriage was very short (less than 5 years) and one person possessed assets before the marriage, it is less likely that they would be distributed evenly between both parties.

    This does not mean that the 'financially weaker' spouse would receive nothing; rather, the individual who originally held property or assets would receive a larger percentage of the assets.

    Do I Have A Right To Stay In My Home During Divorce Proceedings?

    In the UK until a financial settlement is reached or until financial remedies are imposed by the court as a long-term arrangement, either spouse/civil partner has "home rights." Home rights are your legal rights to stay in the family home, regardless of whether you are its legal owner or listed on the mortgage.

    If you’re legal joint owners of the property both parties have the right to stay in the home during the divorce, until your financial settlement (aka <bloglink>"Ancillary Relief"<bloglink>) is approved by the court. This means that you cannot be forced to move out of the property, unless there is a court order (or in circumstances where there are allegations of <bloglink>domestic abuse<bloglink>, or police bail conditions in place which restrict a spouse from being within a specified distance of the property).

    Can My Ex-Spouse Force Me To Sell The House?

    Your partner can't force you to sell a property unless you agree to do so. However, once the court has made a final settlement order if one partner still refuses to move out then the other spouse can apply to the court for an order of sale. You can learn more here.

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    Neil Johnstone is a barrister and the founder of Neil is a barrister with an interest in all forms of civil and family law, and has appeared at all Court levels, up to and including the Court of Appeal.

    Neil started this site in response to a common problem he noticed: Clients were unable to pursue deserving cases due to a lack of up-front funds. Neil knew that better access to No-Win-No-Fee representation and legal funding could help bridge the gap, and so founded; a unique comparison site connecting clients, law firms, and specialist funders.

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