How Do We Split The House In A Divorce
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Are you asking: how do we split the house in a divorce? Kent Property Witness offer RICS expert witness surveyor services for Tonbridge and Kent. We look at how the home can be divided in a matrimonial settlement. Find out more about matrimonial property considerations.
How is Property Divided in a Divorce?
When a couple decides they are going to get a divorce, the matrimonial home is usually one of the first resources which will be discussed by both sides of the divorcing parties.
But how exactly is a property split in a divorce? Well, in actual fact, there are several different ways this can be done. However, if an agreement cannot be made between the couple, then it might be necessary to seek professional help.
The rights to a property can be dependent on a range of different factors, but commonly you will find that the matrimonial home will be part of the overall financial settlement. Of course, this doesn't mean that the property will be split 50/50.
This article discusses as a guide to both the property and the divorce process.
AM I ENTITLED TO HALF THE HOUSE IN A DIVORCE/DISSOLUTION?
When granting a divorce or dissolution, the method through which the court will split the assets includes all the assets which both spouses/civil partners own.
Not just the assets which are owned jointly. This means that the assets can be split depending on the terms of the divorce agreement that the spouses/civil partners come to.
In other situations, the court can decide how the assets are split. This is done when the spouses/civil partners cannot decide between themselves.
The family home is what is described as a unique asset in family courts. The home will be given special treatments in order to ensure that both parties won't be left completely homeless once the divorce/dissolution process is finalised.
Even if one side of the partnership has sole ownership over the home, the courts will often regard this as unimportant, and other factors will be under consideration instead.
In the final divorce/dissolution settlement, there is a range of different decisions which need to be made around the division of the family home.
- Ownership of the home is transferred from one spouse/civil partner to another.
- The home will be sold, and the proceeds will be split into predecided percentages.
- The home will be kept in joint names, but only one person, the primary carer for the children, will remain living within the property. The property will be sold at a later event, for example, a death, a re-marriage/new civil partnership, or the youngest of the children finishing school.
How can the home be divided?
There are several different options when it comes to sharing the equity in a marital home between the divorcing parties, just like there is with sharing money and other assets. Figuring out the best solution to how to divide up a home in a divorce will be dependent on a few specific circumstances, and it will commonly require a large amount of negotiation between the couple. In some scenarios, it can require mediation.
Below are just some of the ways that property can be divided in a divorce or dissolution:
- Selling up - This is one of the best ways to achieve what is known as a 'clean break', essentially a situation post-divorce with no lasting obligations for either spouse/civil partner in terms of maintenance payments and other costs. The matrimonial home will be put on the market, and any profit made from the sale can be divided. Any money made from the sale can be put towards new individual mortgages. This is a helpful option if the divorcing parties do not have the funds for a new deposit.
- Buying the full share of equity - In the case of a joint mortgage, if one side of the party has the financial resources to pay for the full mortgage, then they can acquire their former spouse's share of the equity. This also provides the opportunity for a clean break, but in most cases, it will normally mean the buyer is staying in the marital home. Though, it is also possible to rent out the property.
- Maintenance - If one side of the divorcing party is in a much stronger financial position, then they can agree to move out and leave their marital home to their ex-spouse while still paying their share of the mortgage or full mortgage. This arrangement may just be part of the overall maintenance agreement, especially if there are children living within the home.
- Transferring the property - If a home is jointly owned by two spouses and the mortgage has been paid off, one spouse may agree to simply transfer the property to their ex as described in part of the overall financial settlement.
- Prioritising the needs of your children
Most couples who get divorced or dissolve their civil partnership will not have a full court hearing in order to settle their financial disputes. But it is a good idea to have a full understanding of how courts decide about family homes.
If the participating couple has children, especially young children, then the court will take this into consideration. The child will need somewhere suitable in order to live with both parents. The approach which is taken by the court does vary slightly all around the UK. The eventual outcome will also depend on each divorcee's individual circumstances.
For parents, it is always important to prioritise their children's needs during a divorce or dissolution. This means trying to ensure that their lives are disrupted as much as possible. Unfortunately, many families will need to downsize as a result of a divorce or dissolution.
Court orders to divide up a marital home
Any divorcing couple will need a consent order. These have to be drawn up by a solicitor in order to provide legal standing to any financial settlement; this involves dividing up a marital home. If the couple cannot agree on how they can properly split the property, then the court will make a property adjustment order. This order fully sets out how the matrimonial home should be dealt with following a divorce.
Court orders can include the following:
- Transfer of Property - The court might require full ownership of the matrimonial home to be transferred to one spouse. This might involve the transferring of a mortgage across.
- Sale of Property - A court can decide that the best outcome for a couple is to put the property up for sale. The proceeds will then be divided up between the divorcing parties.
- Mesher Order - This requires there to be a postponement of the sale of the family home. This will allow for one side of the divorcing parties to remain living within the property for a certain period or until a 'trigger event' takes place. For example, a Mesher order can allow for a former spouse to remain living within the property with the children until the youngest of the children has finished full-time education or reached the age of 18.
- Martin Order - This provides for an indefinite postponement of the sale of the property to take place. The former spouse who is granted residency in the home will often be able to, under a Martin order, carry on living there for the rest of their lives. This is once again subject to specific 'trigger events' such as re-marriages or if the former spouse wishes to voluntarily vacate the property.
- A family court can impose a Property Adjustment Order as just part of the overall financial order. However, this will normally just be the result of the failure to agree on how to deal with the property between themselves privately or through mediation.
The court itself can choose how to divide up the property, regardless of whose name is currently on the title deeds. This can also be done without consideration of whether or not there is a joint mortgage in place or if one party had full ownership of the property prior to the marriage.
Are you looking for advice about property valuation following a divorce for Tonbridge and Kent?
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