A divorce raises a string of legal questions on the rights of ex-partners and children involved. A common concern is, ‘how is a house divided in a divorce?’ This article is a guide for everything one needs to know about dividing a house in a divorce.
Who is the owner?
Prior to a settlement or court order being finalised, you will need to protect yourself while the process is ongoing. Your house may be owned by either you or your partner individually, both of you jointly, or by a third party. If the property is in the name of your ex-partner, it does not mean that you have no rights. You simply need to take the following steps to secure your home rights:
Where your ex-partner is the owner:
In England and Wales
You can register an interest in a property in your ex-partner’s name. If it’s recorded at the Land Registry, this will enable you to use a “Matrimonial Home Rights Notice.” If your ex-partner registered it, check if it’s under the HM Land Registry for England and Wales. Declare your interest by submitting the form “Home Rights Notice.”
In case the property is not registered with the Land Registry, you can fill the Class F Land Charge, which costs £1.
If it’s a property other than the family home, you can register a ‘Restriction’ at the Land Registry.
Following these steps, your ex-partner will be barred from selling or mortgaging the property without notifying you.
In Northern Ireland
To protect your interest, you must register a matrimonial charge, which requires that you must be informed before a property is going to be sold or mortgaged. A solicitor will be required to give you a ‘certificate of identity.’
Where you jointly own the property
Ex-partners can either be joint tenants or tenants in common. Being a joint tenant means that both have an equal share in the property. When your ex-partner dies, you will inherit their share despite any wills left by the late tenant.
Tenants in common provide that each partner has a share in the property, whether equal or unequal. When one partner dies, their share of the property is given to whoever they declare in their will.
I have protected myself, but how is a house divided in the divorce?
A settlement occurs where both parties reach an agreement on how to divide the house. Each partner will rely on a solicitor to provide a draft of the Consent Order. This is a legal document stating that both parties have agreed on a financial statement and that they consent to this order made without a court hearing.
Settlements save time and money spent in courts and divorce solicitor fees. Here are some options a couple might consider:
- Sell their property and divide the money equally between themselves.
- One of them may buy the other one out.
- Both can stay owners while one of them lives in the property until their children attain the age of 18 or leave school.
- One owner can transfer an interest in the home to the other one and vacate the property. However, they will still have a share in the property value when it’s sold.
Mediation is another method to divide the house and other items such as property, money, savings, and investment outside of court. However, a mediation settlement is not a legally binding document. As stated before, only a Consent Order can be lawfully binding though it can be based on the mediation document.
Where applicable, one of the ex-partners may also receive legal aid to hire a mediator.
However, it should be noted that in cases involving domestic abuse, a mediator may refer parties to the court.
When a settlement is not reached
Where parties fail to reach a settlement, it will be left to the courts to decide how the house is divided. This decision will primarily be focused on the protection of children, especially if they are below 18. Judges are reluctant to cause them stress by removing them from the property. The secondary concern will be the needs of the ex-partners. The court’s division will not necessarily be proportionate.
Other factors considered by the court are:
- The length of the marriage.
i. Marriages longer than 15 years are usually considered long-term and the division is therefore done more proportionately between partners.
ii. Marriages up to 5 years are considered short-term. Courts will aim to restore the parties to the financial positions they were in before the marriage.
- Ages of ex-partners and earning potential of each.
- Determining who was the breadwinner or the primary carer. Often the latter is given the family home for residing.
- Value of assets such as savings, pensions, and other properties owned prior, during, and after the marriage.
- Each party’s contribution in assets and finances during the marriage.
- Standard of living and expenses for maintenance.
- Disabilities or health/illness-related issues of any party
- Presence of any form of abuse
- Liabilities of both parties
- Cohabitation with a new partner may negatively affect the division of property as court may deem this as financial stability.
If a prenuptial agreement is present, courts refer to them to see the original intentions of parties although they are not legally binding.
After consideration of the abovementioned factors, the court issues a property adjustment order which forms the financial settlement. These orders may vary.
First, the court can order the transfer of property from one partner to another.
Second, a judge can order a Mesher order, which delays the sale of the property till the children reach 18.
Where there are no children involved, and the parties cannot afford the house or another one, the sale of property is ordered and its proceeds are divided equally.
Until a financial statement is made, both parties have short-term home rights which allow them to stay in the family home until a court order passes. These apply even if the house is in the name of one of the parties in ownership or mortgage. Registering with the Land Registry strengthens these rights.
If both parties are named on the mortgage, they are both responsible for the payment. It does not matter if they pay equally. If one party fails to pay, the other will be responsible for the whole mortgage.
If the mortgage is in one party’s name, only they must make full payment. However, if they fail to pay, the other party must pay if they enjoy home rights or are also joint legal owners.
Both parties have home rights, even if the tenancy is in one’s name. The rent must be paid either by both or one of them. Parties can also agree on who keeps the lease provided that the landlord also agrees. Upon disagreements, the court must be relied on to determine who will receive the tenancy.
The question “how is a house divided in a divorce” has may layers. A key point to note is that parties can protect their rights during the time in which a divorce settlement is concluded by declaring interests in the property and securing home rights.
Ex-partners can opt for settlements outside court which are swift and less costly. There are several ways of obtaining a settlement and they can be adopted by the parties depending on agreements between them or circumstances of divorce.
A divorce involving domestic abuse should be settled in court to ensure compliance from parties.
Courts make settlements by considering interests of children and a wide range of factors revolving around the circumstances of both partners. Division of property and assets is done by taking into account the length of the marriage and financial stability of the parties.
Apart from property, mortgages and tenancies are also divided in a divorce based on whose name they are registered in.