Divorce - Who Gets the House?

One of the major concerns that arises for both parties when a marriage breaks down is who will get the marital home which is typically the main asset of the marriage. There are three main options:

1. Buy Out - the Parties agree that one of them will remain in the house and buy out the others interest usually by re-mortgaging. They will need to agree on a valuation of the property and negotiate what percentage of that value they are both entitled too.

2. Sale - The parties agree to sell the property and divide the net proceeds on a certain percentage to be negotiated.

3. Deferred Charge - one party remains in the property and a charge for a certain amount is registered against it in favour of the other party. This charge will be paid upon the future sale of the property which occurs when certain conditions are satisfied e.g. the children finish their education. This option is normally only considered where neither party has the financial capacity to buy out the other and/or the parent with care of the children does not wish to uproot them from the family home as it does not provide a clean break settlement.

In order to negotiate a percentage split of the house whether on a buy out, sale or deferred charge, both parties must provide their solicitors with their "discovery" namely their banks statements for the last 12 months, payslips for 6 months and valuations of any property, pensions or investments. This documentation is then exchanged and a agreement is negotiated outlining what is to happen the house and any other assets or debts of the marriage.

The main factors that will be taken into account are:

a) The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future

(b) The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) The standard of living enjoyed by the family before the breakdown of the marriage;

(d) The age of each party to the marriage and the duration of the marriage;

(e) Any physical or mental disability of either of the parties to the marriage;

(f) The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

(g) The conduct of each of the parties

(h) The value of any benefit either party will lose the chance of acquiring due to the divorce e.g. an inheritance 

If the parties cannot reach an agreement on what is to happen the house or how the value is to be split, then either side may take the matter to court. There is no hard and fast rule, each case is treated on its individual facts with the courts aiming to achieve equality between the parties unless reason can be shown by either side why this should be departed from. 

We have extensive experience in dealing with divorce settlements providing professional and practical advice with a personal touch. If you would like to know more, please contact us on 028 87724333 or email info@fgpatton.co.uk to arrange a free consultation.