Emotionally and financially, the family home is often central to a divorce settlement. Agreeing what happens to your existing home and where one or both of the couple will live next can be complicated, especially when children are involved.
In this country there is no standard formula setting out how assets should be split in a divorce, and every family’s circumstances are unique. We’ll help you to explore all available options and get the best outcome for you.
If you and your partner aren’t married then your rights are different. We’ll advise you on your options and help you to arrive at a fair settlement.
Common Questions & Answers
Will the divorce settlement involve selling the family home?
It depends on your circumstances.
If there are no minor children involved it could be a simple question of selling the house and splitting to proceeds. How the proceeds are split will depend on varying circumstances such as how much each party initially invested into the property and the length of the marriage. There is no definite answer to this question as everyone’s circumstances are different. When there are no dependent children involved there may also be the option of one party ‘buying out’ the other party’s interest if finances allow. The question is then, ‘What is a fair valuation for the purpose of the buyout?’
The situation is different if the property is the family home and there are dependent children involved. The aim is to disrupt the children as little as possible and the best option may be to keep the family home if finances allow. However, property division in divorce will always take into account that children need a family home with both parents.
We look at the potential remedies regarding the property in the next question, but everyone’s circumstances are different and there will be many factors to consider such as the equity in the property, the financial circumstances of the parties and their ability to purchase another property, and also the age and circumstances of the children. We can give you a better idea of the likely outcomes if you book one of our fixed fee 30 minute family law appointment where we can provide tailored advice on your specific circumstances.
What factors are considered when making divorce property settlement?
The marital home is considered as a financial asset alongside savings and you possessions such as your car
As with any financial asset the starting point for making a divorce property settlement is a 50: 50 split. However, the Court takes into account a number of factors when deciding on the financial issues and whether, and by how much, to move away from 50:50. The factors to consider are set out in Section 25 of the Matrimonial Causes Act 1973 and include:
- The needs of any dependant child of the family. This has to be considered first, but does not necessarily carry any more weight than the other factors.
- Income, earning capacity, property and other resources available to the parties or those which they are likely to have in the reasonably foreseeable future. Basically, the Court has to know what you are both worth.
- The financial needs, obligations and responsibilities that the parties have or are likely to have.
- The standard of living enjoyed during the marriage. The Court is under a duty to try to maintain that standard if possible.
- The age of the parties and duration of the marriage.
- Any mental or physical disabilities.
- The contribution, whether in money or monies worth, each party has made to the marriage. This includes not only financial but also non-financial contributions.
- The conduct of the parties. For the Court to take conduct (bad behavior) into account, it must be extreme and directly related to the financial issues.
- Any benefit lost by virtue of the divorce. This can include pensions and health insurance, for example.
There is also a catchall category, allowing the Court to take into account all the circumstances of the case. It is down to the individual judge to decide how much weight to attach to each of these factors and each case is judges on its own facts, so there is no such thing as entitlement.
What happens to the mortgage after divorce?
It depends: sometimes one party takes it on; sometimes a property is sold, so it is paid off; sometimes it remains in joint names. It will depend on your circumstances.
If you are looking for mortgage advice you may wish to contact an Independent Financial Advisor.
The divorce property is in my spouse’s sole name - can it be sold without my consent?
Yes, so you need to take urgent action.
You can apply for a Homes Rights Notice if you still live in or intend to live in the property, which will prevent the owner from selling it. If you do not intend to live there and you start divorce proceedings, you can apply to the Land Registry for a Unilateral Notice which will also prevent the sale.
If you do not wish to start divorce proceedings or are the Respondent to the divorce, you may be able to apply for a Restriction. If successful a Restriction has will prevent a sale but, unlike the other options, you may not be entitled to a Restriction. You have to convince the Land Registry you are entitled to an interest in the property under Land Law and the mere fact you were married is not enough to do that.
If this applies to you, you might have to consider applying for an injunction to stop the property being sold but speak to your divorce solicitor who will be able to advise you of your best option.
What advance preparation can I make regarding property and divorce proceedings?
Basically, get your financial affairs in order and ensure your paperwork is complete and up to date. Any attempts to hide or dispose of assets will be viewed as very serious by the Courts. The Court can, and will, consider historic bank statements, so it is likely any attempt to hide assets will be spotted. This will mean the guilty party may end up with a worse settlement, and possibly an order that they pay some or all of the other party’s costs.
To help you collate the necessary paperwork you can request our Practical Preparation for Divorce Checklist which is a checklist of all the paperwork you will need available to start divorce proceedings and to negotiate a divorce settlement.
We are not married - what will happen to our jointly owned property?
There are two ways of owning property in joint names: -
- Joint tenants: technically, both owners own the whole property, so if one joint owner dies, the surviving owner continues to own the whole property. In the event of a dispute over ownership, there is a strong assumption that the parties intended to own the property in equal shares and there has to be compelling evidence of some other intention before the Court will consider altering this.
- Tenants in common: at the time of purchase, the joint owners decide that they will own the property is certain percentages. This is normally set out on either the transfer form the parties signed when they bought the property or in a document called a Declaration of Trust. It is only in very limited circumstances that the Court can interfere with the parties expressly stated intentions.
Your solicitor can find out which way you own the property. Unless there are children involved, generally the Court will order the sale of a jointly owned property, however the parties own it, dividing the proceeds in accordance with the legal ownership i.e. usually 50/50 for joint tenants or in accordance with the stated shares for tenants in common.
If there are children of the relationship involved, the Court has powers to suspend the sale to provide a home for the children, depending on the overall circumstances.
Issues about jointly owned property are dealt with by the Court under the Trusts of Land and Appointment of Trustees Act 1996. If children are involved, the Court also has powers under the Children Act 1989. These situations can be complicated: your solicitor at Grindeys can advise you on your specific situation.
I am not married and the property is in my ex-partner’s sole name - do I have a claim on the property?
It depends on the circumstances. On the face of it, only the person whose name is on the title deeds to the property is the legal owner. This does not change merely because a couple have lived together, although this is a factor that may be taken into account by a Court.
Legally, you can only have an automatic interest in a property if your name is on the title deeds. However, there are possible ways around this, by way of the doctrines of Constructive, Implied or Resulting Trusts and also possibly by the doctrine of Proprietary Estoppel. There is a very slight difference between these, but it is technical and the basic criteria for establishing either of these trusts are the same. It is effectively a two-stage process: -
- There must be a common intention that the property will be a joint asset. This is not generally easy to establish, but the fact of living together as a couple may imply that intent to a degree and it can also be implied from conduct;
- Relying on the intention, the person seeking to claim an interest must act to his or her own detriment in some way. In other words, they must put themselves out by paying towards the mortgage or improvements to the property or making improvements themselves, beyond merely decorative improvements.
If the Court finds that no contribution has been made to the property, it is unlikely to say you have an interest.
If the Court, as a matter of fact, finds that there is evidence of the common intention, the non-owner can rely on indirect contributions, such as payments of other expenses relating to the property, to establish that you have ‘acted to your detriment’. If the Court has to imply the common intention, as there is no direct evidence of it, then you can only use direct contributions to the purchase or improvement of the property to establish that you have acted to your detriment.
If a non-owner cannot prove that there was a common intention to share the property as a joint asset, then it may be possible to persuade the Court that they are entitled to a share under the doctrine of Proprietary Estoppel. The criteria for establishing this is as follows: -
- The non-owner mistakenly believed that s/he had a legal right in the property;
- The non-owner acted to his/her detriment in reliance on that mistaken belief
- The owner was aware of the non-owner’s mistaken belief; and
- encouraged the non-owner to act to their detriment.
If children of the relationship are involved, the Court has powers under the Children Act 1989 to allow a non-owner caring for the children to occupy the property until the children are 18 in certain circumstances, whether or not they can establish they have an interest in the property.
We are not married - who owns the contents of the property?
Basically, whoever paid for them. If items were purchased jointly, they belong to the parties in the proportions they paid for them. If there is a dispute about ownership, then unless the value of each item is more than £10,000 (bearing in mind this is the second-hand value not the purchase price) then these decisions would be made in the Small Claims Court.
Are there any alternatives to court? What are my options?
When it comes to negotiating an arrangement regarding finances, children or both, the easiest and cheapest route is if a divorcing couple can reach an agreement between themselves about the division of property and, where applicable, childcare arrangements. The role of a solicitor is then to simply to create and gain court approval for the Consent Order.
Alternative Divorce Options
However, divorcing couples have often gone past the point of effective negotiation and so third party intervention is more than often required. Please download a printable pdf version of our Divorce Options Flow Chart which summarises the options available to divorcing couples to effectively negotiate a fair settlement.