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Does the parent with children usually get the house in a divorce?

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For many divorcing couples, the family home tends to be their largest asset and one of the first areas where disputes arise. But what does the law say about property on divorce? What is taken into account, and if you have your children living with you, will you get the house? This article looks at all these issues and more.

Where will the children be spending most of the time?

Although there are no hard and fast rules when considering needs, where the children spend most of their time will be considered. If they spend an equal amount of time which both parents, then needs for this will be equal too. Other factors, such as income and mortgage capacity, will also be looked at. Mortgage capacity can have a significant bearing on how the property is divided, and indeed, whether it should be sold.

Section 25 of the Matrimonial Causes Act 1973 contains a list of factors the court will use to determine how the assets should be divided between the parties. This includes who gets the house or whether it should be sold. Children’s needs are always prioritised, irrespective of whether or not they are of the marriage.

When a court splits matrimonial assets, it will make a decision based on the following factors:

  • Any children under the age of 18, their needs and who they live with
  • The age of each party
  • The length of the marriage/civil partnership
  • The value of the assets, both before, during and after the marriage/civil partnership – this can also include pensions
  • The earning capacity of each party and their responsibilities during the marriage/civil partnership, such as raising the children, and in the future
  • What each party contributed to the marriage/civil partnership in terms of finances and assets and may contribute in the future towards the family’s welfare
  • The standard of living enjoyed during the marriage/civil partnership
  • If either party has a disability
  • Any negative conduct of either party – although it is rare for this to be a consideration in reality
  • The overall needs of each party

The court will try to meet the needs of any children first, and then the needs of the parents secondary to that.

Do I have the right to stay in the family home after divorce?

Whilst consideration is given to how the finances will be split, the children will usually stay in the family home. That said, when looking at division of finances during divorce, there is no right for a parent with children to stay living in the home. If financially possible, and one parent can retain the property and still split the finances fairly, then if both parents wished to stay, it is likely the court would favour the parent who has day-to-day care of the children.

This is not an effective solution if there are insufficient funds to retain the family home or if there is a shared care situation. The court will look at all the circumstances of the case, and the children are one of the factors it takes into account. The fact that there are children cannot dictate the financial split, as often there is not enough money, when making two separate families out of one financial pot, that allows retention of the family home.

Will I have to sell the house before the children are 18?

A few years ago, there was a popular type of order where a parent with children would often stay in the family home until certain future conditions happened. One of those typically being the youngest child reaching the age of 18 or finishing full-time education. At this point, the family home would be sold, and a pre-agreed percentage of the sale proceeds would be paid to the parent who had left the home years earlier. While it is still possible to obtain this type of order, they are now not so prevalent.

Judges are now less inclined to make such an order, as it was found that the stability in living arrangements provided by the order were only temporary. And the disruption for the parent who had remained in the family home on being forced to sell at a later date in an unknown financial future, could be substantial. The family home may therefore have to be sold before the children are 18 if there is not sufficient money to keep it.

Will I have to sell my house when I divorce?

There is no specific rule that says a house has to be sold on divorce. However, the court can order that the family home be sold, although it will need to look at whether the property can be retained for children’s stability, where possible. Courts are careful to make sure that, as far as it can, the children do not see one parent living in comfortable, pleasant accommodation whilst the other is living in less than salubrious conditions. Again, the bottom line is one of affordability and if the home can be retained whilst ensuring a fair and equitable division between the parties.

If I remain in the home, who is responsible for paying the mortgage?

If you are both named on the mortgage, you are both responsible and liable in equal measure for paying the mortgage. This does not mean that you are both responsible for paying half each. If one of you doesn’t pay, the other can still be held liable for the whole amount. The mortgage provider doesn’t care who has historically paid the mortgage, just that the payments are made.

If only one of you is named on the mortgage, that person is solely responsible for the mortgage payments. However, if they don’t make the payments, then the other party can pay if they are a joint legal owner or have home rights. The mortgage lender has to accept these payments as if they are made by the person named on the mortgage. Being named on the mortgage doesn’t necessarily mean that you are the legal owner, particularly if the property is in the sole name of one party, only that you are responsible for making the payments.

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