Tune in to daytime TV and it probably won’t be too long before you see adverts featuring happy family homes with 2.4 children and a dog. For many people that’s the dream and it can also be the reality. For all we speak of divorce rates and changing social expectations, marriages can last a lifetime and many do. But some don’t and when divorce happens, the family home can quickly change for being where the heart is to being an asset worth fighting for. Here is a brief guide to properties, mortgages and divorce.
The number one rule of divorce proceedings – the welfare of children is the top priority
Hopefully, even during a divorce, both parents will work together to keep the children feeling as secure and stable as possible, but it has to be acknowledged that in stressful situations, such as divorce, tempers can run high to the point that parents can’t always see past their own pain and frustration. If parents can’t agree an amicable division of assets, including the house, then a court will decide it for them and their decision will look at the welfare of children first and only after that has been resolved will they try to create a fair settlement for the parents.
The number two rule of divorce proceedings – keep paying the mortgage
Assuming you are jointly responsible for the mortgage then you need to keep paying your share of it, even if you move out. If, for some reason, you can’t, then you need to discuss the situation with your lender.
You will have at least basic “home rights” even if you are not the property owner or mortgagee
As a minimum, you have the right to remain in the house, even if your partner asks you to leave (unless there is some specific reason why a court would order you to leave) and if you do leave, you can apply to a court for permission to return. You also have the option to register your home rights with the Land Registry to limit what your spouse can do with the house without your knowledge.
There is no “one-size-fits-all” answer to who gets the house and on what terms
If there are children involved, then the court is likely to have a preference for keeping them in their established home and hence the parent has day-to-day responsibility for them is likely to get the house as well. In this case, the equity in the house would typically be set against other assets to create an equitable settlement. If, however, this would not be feasible, then the house might need to be sold and the equity divided, not necessarily equally.
If there are no children involved, then courts will try to reach a fair settlement based on the individual circumstances, for example a case where one party bought a property prior to the marriage and was the sole or main breadwinner (read mortgage payer) during the marriage, would likely be treated very differently from a situation where a couple bought a property together and have contributed equally to the mortgage.
K J Smith Solicitors are leading family law solicitors in the Thames Valley area, with offices in areas such as Reading, Windsor, Guildford and Basingstoke. K J Smith Solicitors specialise in all aspects of family law including family mediation, traditional divorce, cohabitation and child residency.