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What will happen to our family home if I get Divorced?

PLEASE NOTE: THIS ARTICLE IS OVER 1 MONTH OLD

home and assets through divorceThere is no simple answer to this question, as you will need advice specific to your circumstances.

What happens to your home is specific to each couple. It is wrong to automatically assume that a Divorce will cause the family home to be sold or you face being homeless.

Your family home is often the largest asset of the marriage and usually the focus of a Divorce and Financial Settlement. We understand the emotional attachment to a family home, which offers security and often is the home to your children too.

Divorce alone will not have any impact on the ownership of your family home it is when you come to separate your finances that your home will be considered.

Ownership and Right of Occupation

It is always recommended that you obtain Office Copy Entries for your property from the Land Registry and know how you own the property, if you own the property as joint tenants or tenants in common.

If you do not own the property jointly then you should always consider as a spouse or civil partner protecting your rights by registering a Home Rights Notice. This is a HR1 form filed at the Land Registry. Our lawyers at Andrew Isaacs Law can help you with this immediately. It is a very quick remedy which offers you extremely important protection.

Without this notice on the title of the property, your spouse could sell your home without telling you. It is something you should do without delay.

Please note this notice does not grant you any right financially to the property but it does mean your spouse cannot sell the property and spend the proceeds without you knowing anything about it.

If your property is unregistered, you can still protect your interest by registering a Class F Land Charge.

Asset Schedule

There needs to be a clear picture of all assets within the marriage and all liabilities to give a true financial picture. When finances are being divided it is not only the family home that is taken into consideration.

There are matrimonial assets which all form part of the ‘pot’ and non-matrimonial assets which may not be included. You should take advice to see which of your assets will be considered matrimonial assets.

The process of obtaining an asset picture with both parties involvement is called disclosure. This can be done voluntarily between the parties and solicitors or it can also be a process directed by the court. If financial proceedings are issued, then disclosure is always ordered and is placed in a large form named a Form E.

All assets including the family home will need to be valued or at the outset given an approximate valuation.

Here at Andrew Isaacs our lawyers will encourage you to have an idea of all assets and their approximate values prior to your initial consultation to enable you to receive more advice specific to you and your situation.

Value

If there is a family home this must be given a value. You may be able to do this by a desktop valuation and looking at comparable properties either sold or for sale in your local area.

You could ask a local agent to value your property. You may even instruct an estate agent to carry out a formal valuation. This is not always recommended as should you issue financial proceedings and the court find it necessary to instruct a single joint expert that is one less expert available to use. Initially asking a local agent to value the property is the most sensible approach.

If you have a mortgage on the property and any other charges you must obtain a mortgage redemption statement to see what is outstanding on the property. Again, if you book a fixed fee consultation with us at Andrew Isaacs Law we recommend you obtain this information before your appointment.

Finally, you need to consider deducting costs of sale. Once you have an idea as to the value of the house a rough rule of thumb could be to deduct 2% as an idea of the fees an estate agent would take from the sale price.

If you follow the below equation then you should have an idea as to the available equity in the property. The equity is the true value of the asset:

Property value

– Mortgage redemption figure

– any other charges

– costs of sale (2%)

= £ equity

If you have children

Going through a Divorce is often a very difficult time for any person let alone if you have children. At Andrew Isaacs Law we understand that these feelings of fear of the unknown, worry and the emotional difficulties are amplified when there are children involved.

Priority is given to the housing needs of the children. You will find a useful article relating to the needs of the parties in our blog Divorce – How Are Finances Divided? on our website.

If your matter proceeds through Court, the Courts do not wish to uproot the entire family if there is a solution to keep the children within their home. It may be that the primary care giver is able to buy out their spouse. It is also likely that if the house is the main asset that the party with the children could be awarded a greater share of the property.

There are orders known as Mesher Orders which could be awarded in the appropriate circumstances whereby the resident parent remains in the home with the children until a trigger event such as the youngest child turning 18. Then the property is to be divided accordingly at that stage.

The underlying principle is fairness and equality so it does not mean if you have children that the primary carer of the children will automatically be granted ownership of the house to ensure a roof is kept over the children’s heads.

Mortgage Capacity

It is always beneficial to seek advice from an independent mortgage advisor or ask questions of your current mortgage lender as to your borrowing capacity. This will then give you an idea if it is possible for you to buy out your spouse of their share of equity and thus have the property transferred into your sole name.

Perhaps you have some savings or a family member who would enable you to purchase your spouse’s share in the house, but you also need to consider the practicality of being able to afford the mortgage, bills and upkeep of the house.

Once you have an idea of your mortgage capacity it may be that the home you are in is too big or beyond your reasonable housing needs and  you would be able to secure a mortgage on a different property. This could then lead you to consider if your spouse could afford to buy you out of your share of equity or if the property would be best suited to being placed on the market and sold. This sale would then release the equity for you to put towards a future purchase.

No solicitor is able to give you financial advice we can only help you consider what options you have.

Sale

You and your spouse would need to agree on a value and obtain a valuationfrom an agent which you both agree on. If you do own the property jointly you can both agree and place the property on the market.

It is for you and your spouse to agree how the equity from the sales proceeds is to be divided. If you are unable to reach agreement, then it will be decided by the court if you issue financial proceedings.

Rented Property

If you are renting a property as joint tenants then you are both equally liable for the rent and are legally entitled to remain in the property.

If the tenancy is in the sole name of either of you then pursuant to your marriage or civil partnership you both have a right to be there. This means you will both have the same home rights.

If you give notice on your tenancy agreement you may have to move out or have the tenancy transferred into either of your sole names if the landlord is agreeable to this.

How we can help

Here at Andrew Isaacs Law our expert lawyers can offer advice and guidance through a very difficult process. You can book a no obligation appointment for a fixed fee to receive tailored advice to you, consider your options and decide how you wish to move forward. Please contact us on 0132 349 480 to book an appointment today.

Roxanne Woolliams, Family Solicitor

07/09/2022

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