Divorce – who gets the house?

The future occupation and ownership of the family home is usually one of the most contentious issues between divorcing couples. The property often represents the most valuable (or only) asset of the marriage meaning that one of them may be unable to re-house without realising their share of the equity. The family home also sometimes has significant sentimental or emotional value.

The Considerations of the Court

The future of the family home often depends upon the following factors:-

• (a)The reasonable housing needs of the divorcing couple (to include their dependent children);

• (b)The nature and extent of the other financial resources of the divorcing couple (i.e. their incomes and capital);

• (c)The affordability of one spouse retaining the property to the exclusion of the other.

The weight which the Court attaches to each of the above factors varies from case to case depending upon the circumstances
such as whether the divorcing couple has any dependent children. As a general rule, the Court will usually prioritise the housing needs of the primary carer for the children of the family.

A Typical Scenario

In most divorces, the family home is the only asset of any real value. Apologising for any stereotyping, the wife is therefore
usually seeking to retain the property on the basis that this would provide their dependent children with some stability during what will be an unsettling period for them. The husband, however, may be seeking a sale on the basis that he would be unable to purchase another property without a share of the equity therein.

The Typical Solution

As stated above, the Court is usually keen to ensure that any dependent children of the marriage are housed in privately owned (rather than rented) accommodation. In the above example, the Court would therefore probably give the wife the opportunity to retain the family home until the youngest child of the marriage attains the age of 18/finishes full time secondary education. Applying the considerations referred to above, however, this will be subject to the following:-

• (a)The property not exceeding her reasonable housing needs – If the divorcing couple only have one dependent child but the family home is a 4 bedroom property, the Court would be likely to find that the wife should downsize to procure the husband’s release from the mortgage/release some equity for him.

• (b)The wife demonstrating that she is able to afford to retain the property – The Court will not make an order which is
  incapable of performance. If the wife’s income from all sources (to include tax credits and maintenance) will not be enough to enable her to discharge all of the household outgoings such as the mortgage and utility bills, it is therefore
  inevitable that the Court will order a sale irrespective as to whether the property exceeds her reasonable housing needs or not.

In the above example, the extent of the divorcing couple’s other financial resources would be unlikely to have a significant
impact upon the ownership and occupation of the family home during the minority of their dependent children. This would only come into play when considering the extent of the interest (if any) which the husband retains in the property.

Non-Typical Scenarios

In the event that the divorcing couple does not have any dependent children or they are operating a shared care arrangement,
it is almost inevitable that the Court will find that their housing needs are equal. Much will therefore depend upon the extent of their other financial resources (i.e. income and capital). If neither of them would be able to buy-out the interest of the other spouse or offset their interest against the other assets of the marriage, it is likely that the Court will order a sale so as to ensure that they move forwards from an equal footing. Of course, that does not mean that the proceeds of sale would be divided equally. This would depend upon a myriad of different factors.

Should you require any advice or assistance with your divorce or with regard to your financial position following your separation, please do not hesitate to contact Ian Butterworth through this firm’s Family Department on 01202 636223.