PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.
By Kelly Willmott – Family Solicitor
The family home on divorce.
A divorce can be daunting and difficult, both emotionally and financially. There will be a number of things to consider with one of the biggest worries being the financial settlement on divorce.
One of the most important aspects of the financial settlement will be the family home, and this is more often than not, the most valuable asset. We get many questions about the family home from those seeking advice about finances on divorce. Below are some of the most common queries;
Can I force my spouse to leave the house until the divorce/finances are finalised?
You cannot force your spouse to leave unless you have grounds for an injunction. There is nothing to stop one party leaving the home voluntarily, which will usually not affect that person’s rights to the home and/or their legal ownership, but it may be that you need to find a way to live under the same roof until matters are finalised.
Is a house sale on divorce inevitable?
The short answer is no. In some circumstances, there may be other options, to include deferring a sale to a later date (until the youngest child reaches a certain age or finishes secondary education, for example) or one spouse “buying out” the other’s share of the home.
How will the house be split?
This will depend upon whether there are children involved, individual circumstances and the overall finances.
If there are no dependent children, you may be looking at an equal division of the equity within the home. If you have been married for a short period of time, and/or if there have been unequal contributions to the purchase of the property, for example, there may be a departure from a 50/50 split to ensure a fair settlement.
Where there are children to consider, the court will wish to disrupt them as little as possible and the needs of the children will be the court’s paramount consideration. The children will need a roof over their head, and if possible, with each parent.
It is not always possible to provide for two homes as part of a financial settlement, however, and there may only be enough ‘in the pot’ to house the parent with whom the children are living. How the house will be split will therefore depend upon all the circumstances of the case.
Of course, there are a number of factors and other assets that the court will consider with any financial settlement.
Can I get another mortgage or buy another house?
This will simply depend upon your financial circumstances and how much capital is available as part of a financial settlement. It will, of course, be harder to get another mortgage if you are to remain named on the mortgage on the family home, in the case of a deferred sale, or where your earning capacity is limited, for example.
It is sensible to get both legal and mortgage advice at the beginning of the divorce process to weigh up your options. We can help put you in touch with mortgage advisors who are well used to helping clients in such circumstances, if you wish.
How long will it take?
Reaching an agreement in relation to the finances, or having a decision being set by the court, can take months. The actual sale may take only a few weeks but it is advisable to wait until a settlement has been finalised before taking steps to actually complete on a sale to ensure that a settlement is not prejudiced.
However you may want to deal with the family home on separation, it is always sensible to seek legal advice at the outset.
If you require specialist advice in relation to finances on divorce, or the family home, please call DFA Law on 01604 609560 and we will be happy to help.