For many facing separation or divorce this is the biggest anxiety – where are they, and the children if they have children, going to live?
For couples who don’t have to worry about children, or whose children are grown up the answer is often fairly obvious – either they sell the house and divide the proceeds, or one of them buys the other out for a fair price if s/he is able to. Instinctively they feel that the equity in the property should be divided equally, but, of course, other shares are possible. But for couples whose children have not yet left home, the answer is more difficult.
On the one hand you need to adjust your finances so that each of you can have somewhere to live, but on the other hand you want to minimise the disruption your separation will cause to your children. The answer, of course, is that you should talk about this issue, and come to an agreed arrangement.
Talking calmly and constructively about these things in an unstructured environment is often difficult, which is where Collaborative law and mediation can help. An arrangement you both feel comfortable with and have agreed yourselves, will be much better than any arrangement imposed on you by an outside agency such as a judge. But people often want to know what their legal position is. This is where a divorce lawyer has to start talking about what happens if they take their situation to court which, of course, is the last thing you should do because it can be extremely expensive and it is almost always quite destructive. Nevertheless an understanding of the court’s approach will help to inform any discussion you have.
It is a complex and nuanced subject and you need to speak to an expert divorce lawyer about your own situation, and you can get more information on our website .
The divorce lawyer’s answer is that if you can’t reach an agreement between yourselves, as to what you are going to do about your home, or about any other aspect of your finances for that matter, including other savings and pensions, then a judge will decide for you.
Getting through the court process to the point where the judge is able to do this is a lengthy, expensive, and - for some people - painful, process. The law says that the judge must, simply, decide what arrangement s/he thinks is appropriate, and fair, but giving priority to the needs of the children whilst they are growing up.
Different judges have different opinions, but there is some consistency of approach. The first question the judge will ask is whether the house should be sold. Unless the house is very grand and valuable, the judge will prefer to see it kept until the children are grown up, and the needs of the separating husband and wife will come second to that. The person wishing to stay at the house (often the wife, but not necessarily so) will have to demonstrate first that she can afford to stay there, so she will need show that she can pay the mortgage and bills from her income month by month. Her income may include maintenance from her (soon to be former) husband but he will not be expected to continue to pay the mortgage or even half of it in the years to come. The judge will then have to decide what should fairly happen to the husband’s share of the house, and there are limited options. If the wife can give him a reasonable payment in return for his share of the house (not necessarily half the equity) then most judges would find that acceptable . She may be able to raise a lump sum by mortgage or from some other source – sometimes her family will help, for example. Otherwise the equity in the house will have to be shared for the next few years, and the judge will have to identify the date when the house must eventually be sold, how the proceeds will then be divided, and what the arrangements will be in the meantime. Generally the judge will say that the house should be sold when the youngest child has completed his or her secondary education, but a minority of judges will extend that to the end of tertiary education, as a much larger proportion of young people go to college or university than was historically the case, and many more of them study from home. The judge will usually add in a proviso that the house might have to be sold if the wife remarries, or co-habits permanently with someone who is sufficiently well off to be able to help the wife to buy the ex-husbands share at that stage. Getting the detail right is important.
There are really two options when it comes to the interim arrangement, each has its advantages and disadvantages, and it often comes down to a matter of conveyancing convenience. If the person staying at the house is able to take over the existing mortgage (or perhaps a remortgage to a new lender) then it makes sense to transfer the legal title of the house to her. This means that the husband will be free to apply for another mortgage to buy a new home for himself, although it may take a little time to accumulate a deposit. His interest in the family home is then protected by a legal charge placed against the title of the property at the Land Registry, rather like a second mortgage over the home granted in his favour rather than in the favour of, say, a bank. Although these arrangements are reasonably common, the documentation which has to be drawn up is individual to you and it is quite complicated, so it is comparatively expensive. But if the person staying at the house is not able to take over the mortgage – perhaps because her income is not sufficient to get a mortgage for that amount – the second option comes into play. In this case the legal title of the house has to be kept in joint names, and the arrangements setting out when it will be sold etc will be documented in a court order made between them rather than at the Land Registry. This involves a good deal less conveyancing, so it is cheaper, but it is also less satisfactory for both parties, certainly for the husband who will find it very difficult to get a mortgage in the years to come.
You should arrange to speak to John Pratley, our specialist divorce solicitor at Apple Tree Family Law about your own situation. He can guide you through these issues, and negotiate on your behalf, or be by your shoulder as you go through mediation. He can usually offer an appointment within 24 hours.
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.