Divorce potentially puts your entire life in the balance. Suddenly, almost everything about your life could change. And from a material perspective perhaps the biggest thing of all is where you will live.
What might happen to your home, and where you will live after the divorce, is one of the biggest concerns for anyone whose marriage has broken down, especially if their present home has long been part of their life.
So what will happen to your home?
Sadly, there is no simple answer to this, but hopefully, the following will provide some guidance. Note that, save for the last section below, this post is concerned with situations where the former matrimonial home is owned, rather than rented. Note also that what follows has been greatly simplified, for the sake of clarity – for detailed advice, consult an expert family lawyer.
Two into one won’t go
Obviously, the issue of housing following divorce stems from the simple fact that two people, who previously lived together, will in future live in separate homes. This means that one or both of them will have to leave the former matrimonial home.
So there are two options: either one party stays in the property, usually having to buy out the other party’s share, or the property is sold and the net proceeds of sale are divided between the parties.
Hopefully, the parties will be able to agree on what should happen to the former matrimonial home, but if they can’t then they will have to ask the court to decide the matter.
A matter of needs
So how does the court decide whether the matrimonial home should be sold, and how its value is divided?
The first point to make is that, save perhaps in very short marriages where the home was owned by one party prior to the marriage, the fact that the home is owned jointly or just by one party has little or no bearing upon the outcome. The law considers marriage to be a joint venture, and the fact that one party does not currently have an interest in the property does not necessarily mean that they will end up with nothing from it.
The most important matter will be the housing needs of the parties. Accordingly, the party with whom the children will live will have a greater housing need that the other party. This may be a good reason for them to remain in the former matrimonial home, at least until the children grow up.
And it is quite often the case that one party is in a better position than the other to rehouse themselves, for example because their higher earnings enable them to obtain a larger mortgage. This may be a good reason for the lower earner to receive a greater share of the former matrimonial home.
On the other hand, if the circumstances of the two parties are broadly similar, in particular in relation to housing needs and income, it may be appropriate for the house to simply be divided equally between them.
Once it has been decided who is entitled to what then it can be decided whether the matrimonial home should be sold. If, for example, one party wants to remain in the property and they can afford to buy out the other party’s share, then obviously there should be no need for the house to be sold. On the other hand, if they can’t afford to buy out the other party then a sale will be necessary, with the net proceeds being divided in the appropriate shares.
If the former matrimonial home is rented then exactly what happens on divorce depends upon a number of factors, such as the type of tenancy, and whether one or both of the parties wants to remain at the property (a discussion of tenancy types is beyond the scope of this post).
However, generally speaking, the court can order that a tenancy be transferred from one spouse to another.
The principles that the court uses to decide whether to transfer a tenancy are similar to when the home is owned. In particular, the housing needs of the parties will normally be the most important factor.