Divorce – The Family Home & Other Properties

Divorce – The Family Home and other Properties

Divorce is more than the legal end of a marriage; it can be a complex process that requires untangling finances, properties, and shared responsibilities. Understanding home ownership rights and knowing the options for dividing property is essential for reaching a fair and amicable resolution.

In the midst of divorce, both partners have legal rights to the family home, even if only one is named on the deeds. If the property is jointly owned, both parties generally have the right to stay until a final decision is reached. In cases where one spouse is the sole owner, the other will still retain occupation rights and will not be forced to leave by the court during the course of the proceedings, unless serious issues or incidents occur, which justify a spouse’s removal.

Couples have several options regarding the family home. One common approach is selling the property and dividing the net sale proceeds in agreed shares or in the shares determined by the court, which may allow both parties to make a clean financial break. Another route involves one spouse buying out the other’s share, allowing them to retain ownership of the home for an agreed sum or for the sum ordered by the court. However, buying out a share often requires refinancing the mortgage in one person’s name, which may demand financial stability and lender approval.

If couples struggle to agree on property matters, the courts may need to intervene to establish a fair settlement. In deciding on financial settlements, the court consider various factors, such as the needs of any child under 18, the value of all the assets, the income of each spouse at the time and in the future, previous standards of living, individual financial needs, the age of each spouse and other factors, including the past conduct of a spouse in rare cases. 

Depending on individual circumstances, a court might issue a “clean break order,” which legally finalises financial ties between both spouses, or it may order spousal maintenance if one partner is financially dependent.

In addition to the options already mentioned, courts in England and Wales can defer the sale of a home through what is known as a “Mesher Order.” This order delays the sale until a specified event occurs, such as the youngest child reaching the age of 17 or 18, or ceasing full-time education, at which point the property can be sold, and the net proceeds are divided according to the court order.

Another option, called a “Martin Order,” allows one person to occupy the property for life or until they remarry, cohabit or die, deferring the sale of the house. This type of order is more commonly applied when there are no children involved, and the other party does not require immediate access to the home’s equity to meet their own financial needs.

If you are living in jointly rented property, then you can remain in the property unless, in the case of a periodic tenancy, your spouse terminates the agreement. Even then, the landlord may agree that you remain. If the tenancy is solely in your spouse’s name, the landlord may request that you vacate. You have the option of applying to the court for an occupation order, which can grant you the right to stay in the family home.

Consulting a solicitor who specialises in family law is highly recommended, as they can provide expert advice and ensure each party’s rights are fully represented. We at All Law can guide you through all the legal issues and advise on the best options for dividing assets. Beyond the legal logistics, our solicitor’s will help you with the emotional toll of decision-making, provide a clear path through each step of the  process and help you to move forward.