Divorce and your marital home

A key issue during divorce proceedings will often be what happens to the matrimonial home. This is usually the most valuable asset that a couple own. As with all assets, the basic principle is that all assets should be divided between the two parties regardless of who bought the home. However, there are a lot of factors that determine what happens to the home following the divorce.

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How is it decided who can stay in the home?

If a couple divorces, they will often question who gets the marital home. If there is a valid pre-nuptial agreement in place then this will usually cover what happens to the home. Where there is not such an agreement in place, then the use of mediation, arbitration or collaboration is always preferable since it is likely to be quicker, cheaper and more amicable. However, where the parties cannot agree then the matter will need to be resolved by the Courts.

What factors will affect the decision?

Section 25 of the Matrimonial Causes Act 1973 sets out various requirements that the Courts need to consider when deciding how assets, including the house, will be shared. The factors that will influence what happens to the family home and other assets will depend on:
•    The income and earning capacity of each spouse
•    The needs of each spouse
•    The standard of living enjoyed by the family before the relationship broke down
•    The age of the parties and the length of marriage
•    If either spouse has a disability
•    What each spouse contributed to the marriage (including future contributions)
•    The value of assets both before, during and after the marriage
•    The conduct of the parties, but only where it would be inequitable to disregard it
•    If there are any children under the age of 18 years.

The Courts will have to balance various factors when making their decision and their top priority will always be the welfare of any children under the age of 18. This means that their housing needs (and those of the parent that they reside with) will be a deciding factor. Each case is unique and the Courts will examine all the circumstances when deciding on how assets are to be divided. They will also want to ensure that both parties have adequate provisions to ensure their housing needs are met and that there is a fair division of assets based on the above factors. It is not necessarily the case that the ex-spouses will get half of the house each (or the equivalent value) and the exact division will depend on the above factors.

What can happen to the matrimonial home

A spouse will often be concerned about whether they can keep the home and remain in it after the divorce or whether it has to be sold. A lot will depend on the circumstances of the individual case. The main options available are:
•    The house is sold and the proceeds divided between the parties. 
•    The sale of the house is delayed until a specific date (such as when any children reach 18 years).
•    The property is transferred to one of the parties and the other party gains a legal charge back that is often linked to a specific date or event occurring. 
•    The property is transferred to one of the parties and a lump sum is paid to the other party to buy them out. 

Common Concerns

Although every case is different, there are some issues that many parties will want answers and we will at some of the common ones here.
Does it matter who owns the house?
In short- no. The owner of the house (whether sole or joint owner) will have legal rights. If a spouse is not a legal owner, then they will have “home rights” under s.33 of the Family Law Act 1996 until the financial order is made. This means that generally one spouse cannot kick the other spouse out of the home during the divorce proceedings. The type of ownership does affect who is responsible for the mortgage payments, since it is only the person that is named that is responsible.

What if the home is rented?

Both parties have “home rights” regardless of who is mentioned on the tenancy agreement until the tenancy or the marriage ends.

Can I change the locks?

Although it may be possible in some circumstances, both parties either have legal rights as an owner or they have “home rights”. Therefore, the locks should not be changed without the consent of the other party and if they are changed they may have the right to have new keys or to have them changed again.

Are my rights affected if I leave the home?

Although a spouse will not lose their rights if they move out of the house, there are practical issues that need to be considered and it is always advisable to get legal advice before you do this.