What happens to the family home if I divorce?

Who gets the family home in the breakdown of a marriage? While a 50:50 split is the starting point, the court may adjust this based on financial needs and other factors. Options include one party keeping the home, selling it, or deferring the sale until a set event. Even if only one spouse owns the home, the other has rights. A clean break is preferred, but each case is unique.

The family home is usually one of the most important assets a divorcing couple shares together; parties will have significant emotional ties to their home, and it is often their most valuable capital asset. Deciding what will happen to the family home can therefore become a very contentious issue.

The ideal outcome would be for parties to mutually agree how best to deal with the home. However, if parties are unable to come to an agreement between themselves, then formal financial remedy proceedings will need to be issued for the court to determine what will happen to the family home.

The starting point for the Court, as with all matrimonial assets, is a 50:50 split. However, if there is reason to do so, the Court can decide to depart from equality. This will only happen in specific circumstances, and it is by no means guaranteed.

When deciding what will happen to the family home the Court will have regard to the section 25 factors under the Matrimonial Causes Act 1973. These factors list the criteria which the Court should consider when coming to a decision. They include factors such as the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have, the parties’ financial needs and the standard of living enjoyed by the family before the breakdown of the marriage.

It is important to note that regardless of whether the family home is in the former couple’s joint names or in one-person’s sole name, the non-owning spouse will still have “home rights”. This offers some short-term protection to the non-owning spouse, for example from eviction, but it is still necessary to decide what will happen in the long-term.

The Court has a wide discretion as to how the family home will be dealt with. Whilst it may not be appropriate in every circumstance, the preferred outcome will be that there is a “clean break” between the parties, so there are no ongoing financial ties between them and they each become financially independent. This is the favoured outcome, as it allows parties to have a fresh start and move on amicably.

There are a number of options available to the Court, and it will make a decision based on the particular circumstances of the divorcing couple. Some of the available options include:

1. Keeping the home:

It may be decided that the best outcome would be for one of the parties to remain in the family home. This may be by one of the parties’ immediately transferring their interest in the home to the other party. This has the benefit of achieving a clean break and allowing any children to remain in the family home. One party may also decide to “buy out” the other party, in order to remain in the family home.

2. Selling the home:

Selling the home is an effective method of achieving a clean break. It allows parties to realise the capital they have in the house and re-house themselves from the net proceeds.

3. Deferred sale:

Although there are benefits to immediately selling the family home, this may not always be appropriate for every divorcing couple. Where this is the case, there are several orders that the Court can make, which defers the sale of the home until a certain event occurs. The benefit of this is that it allows one of the parties and any children to remain in the family home until a certain “trigger” event occurs. However, it means that there is no clean break, as the parties remain financially tied to each other.

Two of the main orders that defer the sale of the family home are: a Mesher Order and a Martin Order. What distinguishes the two orders are the events that trigger the sale of the home. Typically, with a Mesher order, the triggering events are the spouse which remains in the family home remarries, passes away or decides to sell the home, or the youngest child reaches a certain age or ceases full time education. A Martin Order is similar but there are no triggering events in relation to the children, so there is no certain date when the family home will be sold.

Written by Deoni De Silva (Trainee Solicitor)

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