What happens to the family home when we divorce
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The family home is often one of the most sensitive and complex issues for couples going through a divorce. Alongside emotional attachments, there are also important financial and practical decisions to consider. In fact, research shows that 37% of married adults in England and Wales believe they would disagree with their spouse about what should happen to the family home if they divorced.
Deciding what happens to the family home during divorce can involve questions about ownership, mortgage responsibilities, children’s needs, and long-term financial stability. Because of the emotional and financial implications, it is essential to carefully evaluate your options and seek guidance where necessary.
Below, our divorce solicitors answer some of the most common questions about what happens to the family home during divorce and the options available to separating couples.
Practical Considerations When Dealing With the Family Home on Divorce
Understanding Equity in the Family Home
One of the first financial considerations is the equity in the property. Equity refers to the value of the home minus any outstanding mortgage and estimated costs of sale.
If the mortgage balance is high, the actual equity available to divide between spouses may be limited. Understanding the amount of equity is crucial when determining whether either party can afford to keep the property or whether selling the home would be the more practical option.
Considering the Needs of Children
If you have children, their welfare will be a primary consideration when deciding what should happen to the family home. Courts and parents alike generally aim to minimise disruption to children’s living arrangements wherever possible.
In many cases, maintaining stability for children may influence whether the family home is retained for a period of time.
Do Both Spouses Agree on What Should Happen to the Home?
It is helpful to discuss your preferences regarding the family home early in the divorce process. If you and your spouse disagree about whether to sell, transfer, or retain the property, understanding each other’s reasoning can help facilitate constructive discussions.
Family mediation can be particularly useful when couples disagree about specific issues relating to property division during divorce.
Ownership of the Family Home
Although the legal title does not always determine how property will be divided during divorce, understanding the ownership structure can help you make informed decisions.
The two most common forms of property ownership between spouses are:
Joint Tenants
When a property is owned as joint tenants, both spouses are considered to own the property equally. If one owner dies, their share automatically passes to the other owner regardless of any will.
This is the most common arrangement for married couples. During financial disclosure in divorce proceedings, the property is typically treated as being owned equally by both parties.
Tenants in Common
If the property is owned as tenants in common, each spouse owns a defined percentage share of the property. These shares can be equal or unequal depending on the agreement made when the property was purchased.
Unlike joint tenants, an owner’s share can be left to someone else through their will. Disputes over ownership shares can arise during divorce, and legal advice may be required.
Can You Continue Owning the Family Home After Divorce?
Yes, in some situations couples choose to continue owning the family home after divorce. This arrangement may work when children are still living at home or when selling the property immediately would create financial hardship.
Possible arrangements include:
- Keeping the property in joint names for a set period
- Transferring ownership to one spouse with a deferred payment to the other
- Delaying the sale of the property until children reach a certain age
A court may also order a property transfer if it considers this to be the most appropriate solution.
Can One Spouse Force the Sale of the Family Home?
If court proceedings have not yet begun and the property is jointly owned, one spouse generally cannot force the other to sell the family home. Both parties must agree on how the property will be handled unless a court becomes involved.
Reaching an agreement through negotiation or mediation is often the most cost-effective and less stressful approach.
How Are Children Considered in Decisions About the Family Home?
For many families, ensuring stability for children is a priority during divorce. Ideally, children should continue to have secure living arrangements with both parents where possible.
However, keeping the family home is not always financially viable. Courts will carefully consider the needs of the children when making financial orders related to property.
In some cases, the primary caregiver may remain in the family home while the other spouse receives a greater share of other marital assets to achieve a fair overall settlement.
What Can the Court Decide if You Cannot Agree?
If spouses cannot reach an agreement regarding the family home, the court can intervene and make a decision based on the circumstances of the case.
The court’s options typically include:
Order for Sale
The court may order that the family home be sold. This often happens when releasing equity from the property is necessary to meet the financial needs of both parties.
Transfer of Ownership
The court may order that the property be transferred into the sole name of one spouse. In some situations, the spouse keeping the home may pay a lump sum to the other spouse as part of the financial settlement.
The court can also issue orders relating to mortgage payments or other financial responsibilities associated with the property.
Speak to a Divorce Solicitor About Your Options
Deciding what happens to the family home during divorce can be emotionally and financially challenging. Our experienced family lawyers can guide you through your options and help you reach the best possible outcome for you and your family.
Contact Our Divorce Solicitors
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