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The Family Home

By: James Bloom - Updated: 4 Oct 2017 | comments*Discuss
 
Marriage Relationship Divorce Breaking

The ‘ex-matrimonial home’ is a highly emotive subject in divorce proceedings as well as often being the largest asset the couple owns. Depending on your situation, it could be sold and the proceeds divided equally, or get signed over to one partner exclusively.

Coming to an Agreement

If possible sit down with your partner, talk about your respective needs and try to reach an agreement. The court process regarding property can be long and painful so the more you can get out of the way in advance the better. If you and your partner are having trouble coming to an agreement, seek help from a specialist mediator.

There are numerous options and powers available to the courts. Make sure you talk through the various possible outcomes with a solicitor. When you go to court, they will encourage you and your partner to agree between yourselves without them having to make an order, so work out your boundaries for negotiation.

How a Court Decides

If a court ends up making an order regarding your home, their primary considerations will be the needs of any children and the means and earning potential of each partner. If there are no children, a court will usually divide the assets equally. If the mother gets sole residency of the children, she will usually also keep the family home. Even if the home is in the husband’s name, the courts have the power to sign it over to the wife in entirety.

If the children are independent but the mother has spent many years caring for them, a court will usually be disposed to securing capital and an income for her. They will also consider if she has re-married and given up a home or pension rights.

The father may be eligible for a Mesher order, whereby the home is assigned to the mother until the children are independent, at which point he would get a percentage share of the proceeds from the sale of the house.

Courts can also make certain types of orders to transfer rented property in a divorce. You should consult your solicitor as to what rules apply for you.

The main factors influencing a court’s decision are:

  • The welfare of any children.
  • The income, earning capacity and resources of each person.
  • The financial needs, obligations and responsibilities of each person.
  • The standard of living enjoyed by the family before the breakdown of the marriage.
  • The contribution made by each person to the welfare of the family.
  • The conduct of each person. This is only in very exceptional cases.

Short Term Considerations

You may want to consult a solicitor to make sure any property owned by your spouse is not sold or renovated before you divorce. You can also ask the Land Registry to have your house registered in your name too.

Make sure to keep up any payments and draw up a budget for how you and your partner are going to manage the separation while keeping afloat. You may want to cut costs in the short term by cancelling insurance or other payments, but you could regret the decision in the future. Try to keep things running as close to normal as is possible under the circumstances.

If You Have to Leave

If the home atmosphere becomes too difficult to cope with or you are suffering abuse and have to leave, you will not lose any rights to the property.

Your Ex is Living With a New Partner

You have no legal rights to a new partner’s property, but the fact they are living with someone else will usually lower their outgoings and therefore, especially in cases where children are involved, increase the amount of money available to provide for your accommodation.

Divorce Mortgages

Some banks and building societies now offer specialised divorce mortgages, which help you refinance and make a fresh start. Call your bank or building society and find out what they offer.

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[Add a Comment]
BOYDENBABE - Your Question:
My partner's husband is offering her a pittance in their DIY divorce, but she believes that if he sells the house she can arrange for her share to go to her children (aged 15 and 18). Is that possible? I don't think she will have a share as it will be all his! She has agreed to take a small payment as he has promised not to get CSA involved as 15 year old will stay with him. although this will inevitably end up as shared parenting.

Our Response:
If your partner is married, then regardless of whether the property may be considered a pre-marital asset (if it was owned by her husband before marriage), she still has rights. Much depends upon how long they have been together etc. I would suggest that if your partner has agreed to a small payment, rather than paying child maintenance then this should be conducted through mediation in a signed agreement. Still, there is abolutely nothing stopping her ex applying for child maintenance regardless of any non-official agreement being made, if and where circumstances change. Your partner may wish to seek legal guidance regarding this, it is advisable in this case, so that she can fully explore her options and what she may be entitled to.
DivorceResource - 6-Oct-17 @ 11:37 AM
philnat7 - Your Question:
Hi,I need to get the family home sold to free up the money to pay for a tax issue and help care for my partner I am living with as we are struggling to make ends meet. I have written many letters to my wife requesting her to make a decision which she refuses. All my seperated wife seems to be hung up on is the fact that I had an affair.Can I force a sale even though my ex states I be making her and our 24 and 18 yr old sons homesless even thought they all work full time.

Our Response:
The court would not force the sale of the sale of the house, unless your 18-year-old has left full-time education. If they are all working and your ex is refusing to negotiate, your only recourse would be to take the matter to court. As only a court can rubber-stamp any decision it makes.
DivorceResource - 5-Oct-17 @ 11:15 AM
My partner's husband is offering her a pittance in their DIY divorce, but she believes that if he sells the house she can arrange for her share to go to her children (aged 15 and 18).Is that possible? I don't think she will have a share as it will be all his!She has agreed to take a small payment as he has promised not to get CSA involved as 15 year old will stay with him... although this will inevitably end up as shared parenting.
BOYDENBABE - 4-Oct-17 @ 11:55 PM
Hi, I need to get the family home sold to free up the money to pay for a tax issue and help care for my partner I am living with as we are struggling to make ends meet. I have written many letters to my wife requesting her to make a decision which she refuses. All my seperated wife seems to be hung up on is the fact that I had an affair. Can I force a sale even though my ex states I be making her and our 24 and 18 yr old sons homesless even thought they all work full time.
philnat7 - 4-Oct-17 @ 12:24 PM
Lori - Your Question:
When I got my divorce 7 years ago the judge left it up to my ex to take my name off the home that we shared. He never did and he is still paying on it. Since then he has logged the property and gotton income for it and now he wants to sell a portion of it. Am I entitled to any of the proceeds

Our Response:
Much depends upon whether you had a full and final financial settlement ( 'clean break' divorce) which severs the financial ties between a married couple once the finances have been co-distributed.
DivorceResource - 20-Jun-17 @ 2:56 PM
When i got my divorce 7 years ago the judge left it up to my ex to take my name off the home that we shared. He never did and he is still paying on it.Since then he has logged the property and gotton income for it and now he wants to sell a portion of it .Am I entitled to any of the proceeds
Lori - 20-Jun-17 @ 4:45 AM
Husband married me for assets....I own all my properties and seems like He has been checking into Revers mortgages for my home. He had his name added to my property???? Can he get this loan with out my signature!
Bunny - 12-Jun-17 @ 9:38 AM
@J - have you offered him the market value? You have to take into account any appreciation of the property also. He probably wants to come out of it with a bit of what he invested, even if that was only time. Gill.
G^*(* - 18-Apr-17 @ 2:48 PM
Hi My partner and I separated last August after purchasing a property the previous January. As part of the separation it was agreed I would keep the property and buy out my ex-partner. After a very difficult few months trying to secure a mortgage I have finally done this and sent an offer for the release of interest to my ex-partner which has been refused and he is asking for an amount which I don't believe is representative of the amounts paid by him for the property. Furthermore, given the money spent from my personal finances to invest in the property then the amount becomes even more unrealistic. We were unmarried with no children. What options are left to me? I suggested he hire a mediator at his own expense to help resolve this but I feel it's foolish as even then he will have to take the amount I'm offering to pay for such services rendering his overall net gain much less than both the value he is demanding and the value I am offering. I have to say our solicitors have been less than helpful given they have only advised we sort it out between us but it's so difficult reaching an agreement with someone so wholeheartedly stubborn and inflexible despite the fact they have been presented with solid traceable facts and figures (moneys paid in and out of joint account). Thanks
J - 18-Apr-17 @ 12:35 PM
Cathy - Your Question:
When we divorced, my husband stayed in the family home with my younger son. The divorce settlement states that next summer, when my son leaves full time education (he will be nearly 19), the house will be sold and I will get a 13% share of the equity. I believe my ex. plans to pay of the remaining mortgage (negligible) before then and the estimated value of the house is c. £400,000. My share is therefore in the region of £52,000. My eldest son wishes to buy me out of my share by taking out a loan/mortgage for that sum. we are just not sure how this can be done. Would he be able to get a mortgage to buy in to a small share of the house?

Our Response:
There is no reason why he would not be able to get a mortgage if he is in full-time, permanent employment (for at least six months). He may also need a percentage as a deposit in order to take out the mortgage. Much depends upon the terms of mortgage companies - he/you would have to do some research.
DivorceResource - 15-Nov-16 @ 11:17 AM
When we divorced, my husband stayed in the family home with my younger son.The divorce settlement states that next summer, when my son leaves full time education (he will be nearly 19), the house will be sold and I will get a 13% share of the equity. I believe my ex. plans to pay of the remaining mortgage (negligible) before then and the estimated value of the house is c. £400,000.My share is therefore in the region of £52,000.My eldest son wishes to buy me out of my share by taking out a loan/mortgage for that sum... we are just not sure how this can be done.Would he be able to get a mortgage to buy in to a small share of the house?
Cathy - 14-Nov-16 @ 2:31 PM
It was agreed in our divorce in court that i get our marital home which still has a morgage on in joint names and my ex husband gets two properties we had also in joint names , we were given two years to remove each others names off the morgages , it has now been 4 years and my ex husband who has remarried is refusing to change the morgage , which is stopping me from remorgaging for my home , what can i do ?
Debs - 10-Jul-16 @ 10:08 PM
My story is similar to K I have a joint morgage with my husband but I have always paid the morgage while my partner has worked part time and aid the bills although he has been a house husband for the last year. In this case would I have more right over the house or would it still need to be split 50/50
royalice63 - 18-Apr-16 @ 8:06 PM
my husband and I are separating after 24 years, we have no children. when we got together my husband moved into my home that I owned with no mortgage. five years after we married I sold that house and we bought another one that I paid for with the funds from that sale but we had to borrow 20k to do it up and that was borrowed as a joint mortgage.if we have to split the assets in the home can I take back the full cost of the purchase price I paid before the remainder is shared. my husband agreed this verbally at the time I paid for the house but it was never put on paper
maria - 9-Jan-16 @ 7:36 PM
rosy - Your Question:
Hi I've been married for 20 years and I have 2 children 19 and 15 years old. the house and the mortgage in my husband sole name and he pay the mortgage because he work as was busy raising my children. now my husband want to remortgage the house because he want's to buy a bigger one, but I have bad feeling that he up for something. what is the worth that could happen if he remortgage the house? thankyou

Our Response:
It's a difficult question to answer as you do not say whether you are living together, or are separated. Whatever the case, if you are still married, regardless of whether the house is in his sole name, it is considered as a joint asset. If he attempts to re-mortgage in his sole name and you are still together, this still applies. It makes no difference whether you have contributed financially or not. You have been raising your children, which would be considered as equally as important as your husband's work in any court of law.
DivorceResource - 29-Oct-15 @ 1:52 PM
hi I've been married for 20 years and I have 2 children 19 and 15 years old. the house and the mortgage in my husband sole name and he pay the mortgage because he work as was busy raising my children. now my husband want to remortgage the house because he want's to buy a bigger one, but I have bad feeling that he up for something.. what is the worth that could happen if he remortgage the house? thankyou
rosy - 28-Oct-15 @ 5:11 PM
I divorced my wife of 28 yrs6 months ago and separated 18 months ago ..I am still in the marital home ..we divorced due to adultery and infidelity on her part she moved in with her partner. When she leftshe declared that she would not make a claim on the property firstly as she accepted she had never contributed financially to the property or running off financially and she wished her share to be split between the children so i could not sell it on or leave to any future partnerand vise versa. It was decided that on my death or forced sale of the property she would then have a share of the proceeds..we drew up our own personal contracts which we both signed and got witnessed to this effect ..I in turn agreed to take on all the marital debts which we were paying and agreed she would not be liable for any mortgage payments as I cannot remove her from the mortgage as my credit rating is very bad as i was unemployed for several years.However I agreed to pay all legal and divorce and solicitor fees as part of the agreement ....she now appears to want to go back on this agreementas her new partner is thousands of pounds in debt and we believe she is being coerced Incidentally we are aware that he has done this several times before ....So my question is , how would a court look at this , would they force a sale would it be 50 50 or do that make allowances due to circumstances... shouldi be forced to sell, both myself and my adult daughter would be homeless as we would not be able to afford anything else as my credit rating is none existent and my income is all but swallowed up with the debts ... .
monty - 14-Oct-15 @ 9:10 AM
I have a joint morgage with my husband but I have always paid the morgage while my partner has worked part time and aid the bills although he has been a house husband for the last year. In this case would I have more right over the house or would it still need to be split 50/50
K - 16-Aug-15 @ 12:45 PM
My ex wife and I are now divorced and our two children are now adult age. My wife now wants to buy me out of the property of which the mortgage has been paid in full. The house is in joint names, do we need to go through a solicitor to do this?
davat - 2-Jun-15 @ 7:07 PM
hi My wife and I are separating after 13 years of marriage. We have a 12 year old son. My wife was previously married and bought the house we live in with her 1st husband. She was 21 at the time and divorced a few years later. We are both in our late 40s. Her previous married name remains on the mortgage alongside her then husbands. She has tried to change this but complications due to his now living in Asia have prevented this. My wife worked whilw i have stayed at home with our son and although not employed I have finished to college courses and am presently finishing my third which should lead to employment. At the moment I receive no benefits as my wife works just over the amount of hours allowed for receipt of benefits. For the first few years i worked and contributed jointly. Could you give me any advice on a likely financial settlement please Thank you
diskohooligan - 24-Mar-15 @ 4:42 PM
What happens when only one spouse owned the house and was the only one paying mortgage and the marriage was only a year,and the other spouse moved from another part of the country,giving up their home?
ring finger - 29-Apr-13 @ 2:17 PM
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