You can ask our solicitors online for advice on who gets house in divorce using the question box on the front of our website or the following free legal advice guide may answer your questions. 

The family home is always an area for discussion in divorce proceedings, particularly if it is mortgaged or owned outright by the couple. Who gets house in divorce is something, to which,  serious consideration must be given to what will happen to the family home and if it is sold, how any funds or remaining debts will be settled.

Couples going through divorce have a number of options available to them when it comes to who gets house in divorce, but it is important that they receive the right advice to ensure that all funds are appropriately and fairly distributed. Solicitors can make the process easier, make the settlement process less stressful and minimise disruption for the couple.

Who Gets House in Divorce

When a couple divorce, there are several options open to the divorcing couple in relation to the family home. These include:

• Selling the property and each partner finding a new place to live. When the home is sold any equity remaining in the property will form part of the settlement or likewise, any debts can be divided accordingly.
• One partner may decide to buy the other out and remain in the property
• The couple may decide, perhaps if there is children involved to remain co-owners of the property, with one partner living in the home and the other living elsewhere.
• Continue to co-own the property but advertise for a tenant and rent the property out. This option is only viable if the couple have had an amicable divorce.
• Transferring a share of the property to the other partner as part of the divorce settlement. The individual who transfers their share however will still have an interest in the property and is entitled to receive their share once the property is sold.

Considering Children’s Needs

One of the most important things to think about when deciding what to do with the family home is what will be best if there are children involved. Moving a child out of the family home can be disruptive and unsettling, causing even more distress to the child as their parents separate. Sometimes, the best option is for one of the couple to remain in the family home and raise the children.

If the matter proceeded to court, the court will always look at the welfare of the children involved. Where there are young children, the court will make them a priority and identify the most suitable residence for them based on their needs. Sometimes, the court will encourage the couple to sell, or to transfer the property as this is in the best interests of the child.

Legal Implications of Selling

Where the above options are not practical, a divorcing couple may be able to apply to the court for an order to defer the sale of the property. This is known as a Mesher order. The purpose of this is to postpone the sale of a property until a specified time or event. This could for example occur when a child reaches the age of 18 or after a certain number of years.

When the specified time arrives, the property must be sold and the proceeds of the sale divided between both partners. There is also what is known as a Martin order which also relates to the postponement of the property sale. This order would allow the remaining partner to occupy the property for either until such times as they remarry or for the rest of their life.

This order is commonly used when there are no children involved and the partner does not require any money immediately from the proceeds of the sale.

Scottish Law

For those living in Scotland, there is a particular way of calculating a financial settlement for a divorce or dissolution of a civil partnership. When calculating the sum of the settlement, the total value of the property is considered but only if the property was purchased after the couple married, entered into a civil partnership or a situation where the couple lived in the property prior to their marriage as their family home.

Where transfer of ownership is concerned, both partners will need to reach an agreement on when the property is valued. The date of this must be as close to the transfer date as possible.

It is essential that when dealing with matters concerning property, a qualified legal representative is consulted to ensure that finances from a property sale are fair and proportionate and the property is sold at the right time.online