Divorce or Separation - Who Gets What?
One of the hardest parts of divorce or separation can be deciding who gets what. Your home might be your biggest asset, so it’s can be tough if one of you wants to sell the house and one of you wants to stay.
Here’s what you can and cannot do with the family home depending on your circumstances.
If You are Married
If you and your former partner are still legally married then you probably won’t be able to force them to sell the family home if they don’t want to, without first getting a Court Order in your divorce proceedings.
This is because they have matrimonial home rights, which means even if they don’t legally own the property with you, they still have a right to live in it because you are married.
What You Can Do
If you have separated, you should:
- Try and Come to an Agreement - Speak to your former partner about who will live in and pay for the family home. This is a big decision, but try and keep your emotions out of things and decide based on what will work best for both of you.
- Get a Separation Agreement - If you think the best course of action is to sell the property, but your former partner doesn’t agree, then things can become complicated. If you’re not planning on getting a divorce straight away, one of our Family and Divorce Solicitors can help you get a Separation Agreement. This is a written agreement that outlines what will happen to the family home in separation, as well as your other assets and family issues. We can help you to reach an agreement before you get a divorce.
- Start Divorce Proceedings - When you apply for divorce, you can apply for a Financial Order at the same time. A Financial Order is a legally binding document which sets out any agreement about what will happen to the family home and other assets now and in the future (not just while you are separated). This is sometimes called a Clean Break Order. If you do it with the agreement of your former partner, it is called a Consent Order.
If You are Divorced
What happens to the family home after divorce will really depend on your situation. If you jointly own the property and you want to sell but your former partner doesn’t, then you can’t force them out without a Court Order.
If your partner owns the home in their sole name and you don’t have children then it’s likely that once you divorce you won’t have a say over your home, so you should make sure that you take steps to protect your interest in it.
If you do have children, then it’s important to do what you think is best for them. If your disagreements go to Court then the Judge will always first consider the welfare of any children you have under the age of 18.
You should always try and sort your matrimonial finances out while you’re in the process of getting a divorce, so that your former partner can’t make a claim over your assets further down the line when you’re both living separate lives.
You should know that even if you’ve been divorced for some time, you can apply for a Financial Order at any point. This means that people often find their circumstances have changed considerably and they could have received money from an inheritance or increased a pension fund, which would really complicate issues.
What You Can Do
If you’re in the process of getting a divorce or if you are already divorced, and you can’t agree on what will happen to the family home you can:
- Try Mediation - If you and your ex can’t come to an agreement, but you’re set on selling the family home then you could try mediation. This is a meeting where you both sit down with a mediator and try and solve your issues less formally through conversation.
- Get Legal Advice - Contact one of our Family Law and Divorce Solicitors to help you sort through your issues and come to a final decision on who will stay (if anyone) in the family home. We can help you reach an agreement and use our experience to advise you on what the Court might decide if your issues were to go to Court. This is a good way of showing you what the outcome may be if you can’t come to an agreement between the two of you.