If you are getting a divorce, deciding how your property is split may be one of the most important issues. Whether you want to decide who remains in your family home, or you have a holiday home that you want to keep, agreeing who gets a property on divorce can be a difficult process. And what if you want to stay in your home during the divorce? Who pays the mortgage? What if your name is not on the property documents? And can you stop your ex selling your home? Keep reading for our guide to property and divorce.
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Can I stay in my home during the divorce?
If you own your property in joint names, you have both the right of entry and the right of occupation until the court make or approve a financial order.
Your spouse cannot force you to move out of the property unless:
- there is a court order in place
- there are allegations of domestic violence and police bail conditions restrict you being within a certain distance of the property.
If the property is owned in your name only then you have the right to remain there.
If the property is owned in your spouse’s name alone, you may still be entitled to stay in the property during your divorce. See ‘what if my name is not on the mortgage/property?’ below.
What if we own the property jointly?
If you own the property in your joint names, or if your rental agreement is in joint names, then you have equal legal rights to remain in the property.
In practice, this situation may not work for you. However, if you move out you can be safe in the knowledge that you retain an interest in the property. You will retain the right to live there until the ownership of the property or tenancy is changed into one name.
What if my name is not on the mortgage/property?
If your home is in the sole name of your spouse, you may still be entitled to remain there. This is true if they own the home in their sole name, or if they are the only person named on the deeds/tenancy.
You do this by registering your ‘Matrimonial Home Rights’ with the Land Registry (see ‘can I stop my ex selling the property?’ below). This ensures that your residential rights are protected until the divorce has been finalised and ensures you can remain in the property while any financial settlement is being made.
Once the financial agreement is made, you may be able to remain in the property if it has been transferred to you as part of the settlement. You may also have to move out of the property, depending on the agreement you signed.
If you have children and you are the main carer, it is also extremely unlikely that you will be required to leave the family home if you have nowhere else to go. The needs of the children come first and those needs include the children having a safe stable home.
Bear in mind that if you lived together but were not married, and you have no children, then you may well have no rights to the property at all. This is often the case even if you have contributed to the upkeep of the property and the bills during the time you lived there. If you separate, you should seek specialist legal advice.
What if we have a joint mortgage? Who pays the mortgage during divorce?
If your mortgage is in the joint names of you and your spouse, you are both responsible for paying the mortgage.
Under the principle of ‘joint and several liability’, you are each responsible for the entire debt and the entire monthly payment, not just half of the payment. If your spouse does not pay their share, you can be held responsible for the whole mortgage payment.
If you are going through a divorce, it is important that you speak to your spouse and establish how the mortgage will be paid. You may agree to split the monthly repayments (not necessarily 50/50) or one of you may take on the whole payment.
Ensuring the mortgage is paid on time and in full is important, particularly if you intend to get a mortgage in your own name in the future. Missing payments could damage your credit rating, making it more difficult for you to get a mortgage in your own right in the future. You will also slip into arrears and, ultimately, you could lose your home if it is repossessed by your lender.
What if I owned my house before we got married?
There is no specific rule that governs how your property will be divided on your divorce, and it will depend on your specific circumstances.
If you owned your home before you got married, and you have since lived in it with your spouse as your marital home, it will typically be considered a ‘matrimonial asset’. This means it could be divided between you when you divorce.
If you owned another property before you married, and it is not your marital home, it may be considered non-matrimonial property and you may be able to keep it on divorce.
However, the property could still be taken into account in any financial settlement if there is simply not enough money for one of you to move into alternative accommodation. Your spouse would need to prove that their financial needs cannot be met without the proceeds from the sale of this property.
Can I stop my ex selling the property?
Yes. If the property is in your joint names, then you can prevent your spouse from selling the property simply by not agreeing to the sale and not signing any paperwork.
If the property is in your spouse’s sole name, then you can stop them selling the property during the divorce process by obtaining a ‘charge’ over the property. This is called ‘Matrimonial Home Rights’.
You register this notice with the Land Registry by using form HR1. There is no fee. The notice allows you to remain in the property while any financial settlement is concluded and alerts any potential buyers of the property that you have the right to occupy your home. It has the effect of preventing your spouse from selling the property without your knowledge.
You can only have one Matrimonial Home Rights notice at a time. So, if your spouse owns other properties then you should seek specialist legal advice if you are concerned they will be sold prior to your financial settlement being concluded.
What happens to the house on divorce if we have children?
If you have children, then a court will make any financial settlement with the best interests of your children in mind.
While each case is different, if you have children then it is common that one spouse will be allowed to remain in the property until your children reach adulthood. This assumes that you haven’t both voluntarily decided to sell the property and move on with your lives afresh.
What are my options for splitting the property when we divorce?
There are three main options for dealing with your marital home after divorce
Sell the property and split any equity
The advantage of selling the property and dividing the equity is that it gives you a clean break, and both of you can move on and make alternative accommodation arrangements. Any mortgage will be repaid, and any remaining equity will be split between you. You will have to decide how this equity will be split.
However, if you have children then one of you may prefer to remain in the property to limit the disruption to your children. This may depend whether one of you can afford to continue living in your marital home.
One of you buys the other spouse’s share
If one of you decides that you want to remain in your home, you will need to transfer ownership into your name.
You will normally need to get an independent valuation of your property that you both agree with. You will then need to approach your mortgage lender to prove that you can afford to take the mortgage on your own. Your lender does not have to transfer the mortgage/property into your name and so you will have to show that the repayments are affordable to you.
If you are buying your spouse’s share, then you will also have to prove to your lender that you can afford the increased mortgage and repayments.
If your lender approves the transfer, you can then complete the transfer of ownership/equity.
The property remains in joint names but just one of you lives there
If you have children, you may decide that one of you should remain in the property. However, it may be the case that this person cannot afford to take the mortgage on in their own right or buy out the other spouse’s share.
In this situation, you may be able to defer the sale of the property until a specified point in the future: for example, when your children leave home. This is called a ‘Mesher Order’ (or ‘order for deferred sale’) and can contain a list of situations which would force the remaining spouse to sell the property. These situations might include your children leaving home, or remarriage.
In this scenario, it can be difficult for the spouse moving out of the property to buy another property as they may not be able to get a second mortgage.
How does a court decide who gets the property on divorce?
Every case is different, and the court will consider all your circumstances when making a decision.
If you have children under the age of 18, then the best interests of your children will be at the forefront of any decision. The court will try and minimise the disruption to your children and there is a preference for them to live in a property that you own.
Once they have considered the welfare of your children, the court will also consider the following factors when deciding how to deal with any property:
- Each spouse’s income, earning capacity and financial resources, both now and in the foreseeable future. You must provide full disclosure of all your assets and income, and any assets such as property will have to be valued. As well as your current income, the court will consider your future income – for example, one spouse may have to reduce their work hours/income to care for children.
- The standard of living you enjoyed before you separated. The aim here is to balance the available resources, and the reality is that you may both enjoy a lower standard of living once your divorce concludes.
- Your age and how long you were married. Generally speaking, the longer the marriage the larger the financial settlement. The court will typically consider a 50/50 split of matrimonial assets if you gave been married for a long time, whereas in a short marriage the amount of capital you contributed to the marriage may be more important. Your age is also a factor; if you are young then the court may prefer a ‘clean break’ settlement. If you are older, then other provisions such as pensions may be more of a priority.
- Each spouse’s financial needs and responsibilities now and in the foreseeable future. This includes rehousing both spouses and is particularly important for the carer of any children. Your capacity to borrow money (for example, for a mortgage) will also be taken into account.
- The contributions each spouse made to the welfare of your family while you were married, and will make in the future. If you remained at home to care for children, then a court will generally treat this as having made an equal contribution to the family and to your matrimonial assets. Any inheritances will also be considered here, and whether they are divided depends on a range of factors such as when they were received and whether they now form part of your joint assets.
- Each spouse’s conduct – if it is such that the court deems it inequitable to disregard it.
Having considered all the above factors, the court can make a range of orders including:
- transferring the ownership of a property from one spouse to another
- selling the property and dividing any proceeds
- postponing the sale of the property to a specified future date, at which time the proceeds will be divided.
What about property I inherited? Is this split on divorce?
If you inherited a property before you got married, your spouse can still make a claim on it when you divorce. They can also make a claim if you inherited a property while you were married.
If they had benefited from it during your marriage – perhaps you lived in the property as your marital home – then they may be able to make a claim to divide it.
There is a distinction in law between property you inherited before marriage and ‘matrimonial property’. Inherited assets should be treated differently from matrimonial property when you divorce, but only if the needs of both you and your spouse can be met from the matrimonial assets alone.
This means that if both spouse’s needs cannot be met out of your joint, matrimonial property, a division based on ‘needs’ should prevail. Inherited assets could therefore be split in this situation.
What about our second property? What happens to that on divorce?
Joint property is one of the most difficult assets to split when your marriage ends. So, if you own more than one property, you and your spouse may decide to divide the properties between you and balance out any difference in value with other assets.
You may also decide to sell all your properties and split the proceeds between you.
If you can’t come to a financial settlement with your spouse, a court can order that any properties are sold or transferred and how any proceeds should be divided.
How are buy-to-let properties split when we divorce?
As above, you can reach a financial settlement with your ex as to how any investment properties you own are divided. You may split these equally between you, or one may take more properties in lieu of other assets or income. It’s typically more important that the overall financial settlement – taking into account all martial assets – is fair for both parties than there be specific rules regarding who should gain what asset.
Again, the court can order the sale or transfer of any property from one spouse to another.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.