Can I keep the house if I get divorced?
This is a question that I am often asked particularly by parents with young children who are anxious about having to move and potentially take the children out of their school.
There is no automatic entitlement for either the husband or wife or civil partner to keep the family home in the event of a divorce. This is the case even where there are young children.
Whether or not you can keep the house does depend on all the circumstances of your case and what there is in the assets pot between you.
What does the Court look at when deciding who should keep the family home?
The most important consideration for the Court will be affordability. Can the separating couple between them afford to pay the mortgage and other bills on the family home?
If it is clear that there would be insufficient income to run the family home upon separation, then the Court will have no option but to make an order that the family home is sold upon divorce.
What if there is enough money to pay the mortgage and other expenses on the property?
If affordability is not an issue, then the Court has to consider the needs of the children first. The Court will want to ensure that the children suffer from minimal disruption, and it will be the children’s main carer who will be allowed to stay in the family home when there is a divorce.
What if I cannot afford to pay the mortgage and bills but my ex husband/wife or civil partner can?
Again, affordability is central to any decision that the Court makes and if your husband or wife or your civil partner can afford to pay for the outgoings and also pay for his or her own housing costs then if you cannot reach an agreement the Court can make an order for maintenance i.e. a monthly allowance so that you can pay for all the bills on the family home. You will however be expected to contribute towards your expenses if you can work but you would not have to sell the house immediately.
You would need to reach an agreement on when that family home should be sold. If you cannot agree the Court would step in and make an order for the date of its sale or the event that would trigger a sale.
When would I be expected to sell the house?
Normally there is a sale when the youngest child is 18 or has completed full time education. If you are the person paying the mortgage and bills, then it’s really important that you ensure that your court order or agreement makes it clear that the family home should be sold before your youngest child’s 18th birthday or completion of education if your ex remarries or cohabits with another person. In such circumstances the date of the sale of the family home should be brought forward to that date of remarriage or cohabitation.
What other options are there?
If you and your spouse or civil partner have several properties between you then you have the option to transfer your various properties to each other so that you end up with your own properties in your sole names of roughly the same value. Where there are mortgages on the properties the transfers of the properties will only be possible if you can persuade the mortgage lender of each of the properties to take the other property owner off the mortgage before those properties are transferred to you. You would also need to ensure that you are taken off the mortgages of the properties that your ex was keeping. The mortgage lenders would have to carry out an affordability assessment for each property being transferred and be satisfied that the person to whom the property was being transferred could pay his or her mortgage and pay for other bills and expenses. There could be capital gains tax to pay so if you were thinking of this option always run this past your accountant first.
Can I buy out my husband’s or wife’s or civil partners share instead of selling the family home?
Yes, you can if you have the money to do so. You can buy out your ex’s share even if he or she is not in agreement and wants the house sold.
When advising you on this really important issue at Branch Austin McCormick we take great care to tailor make a solution that works for you and your specific family circumstances.
Saika Alam is a well-respected Family and Divorce Lawyer based in Mayfair, London. Known for her personal and practical approach many clients work with Saika on their most complex divorce, financial provision, and children related matters.
Book your complimentary call with Saika.