Here’s what happens to the family home following a divorce

Question: What happens to the family home on divorce? Does it really have to be sold?

Answer: Not necessarily. It will depend on the individual circumstances of the family concerned.

For many couples the family home is their most valuable asset and is where the family have lived and so what happens to it on divorce is often the cause of disputes and much acrimony.

It is important to remember that it is irrelevant whose name is on the title deeds to the property as each party to a marriage has a legal right to live in the family home unless the couple have varied this right by way of a pre- or post-nuptial agreement.

How does the court split assets?

Divorce settlements can include a range of possible outcomes to ensure that each settlement is tailored to meet the needs of the couple or family concerned.  

In order to achieve this a divorce settlement should take into account matters such as whether or not there are children of the family, if there are any other assets in addition to the family home, and if the couple work etc.

The options available depend on the individual circumstances in each case e.g. the parties could agree to sell the family home and split the proceeds of sale either equally or unequally; one party could buy out the other so that one of them can remain in the family home; the property could be transferred into the name of one party in return for the other party receiving other matrimonial assets or being released from any related mortgage secured on the property.

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Although there are options, if there are children of the family their needs are considered by the Court to be paramount. 

What happens to the family home?

In such circumstances a Mesher Order may be appropriate providing for the family home to remain in the joint names of the couple but allowing the party who has primary care of the children to occupy it until a certain event occurs, such as, the youngest child reaching 18 or the occupying spouse dying or remarrying.  

As an alternative to a Mesher Order, the property could be transferred into the name of the primary carer with the other party retaining an interest in it by way of a charge back.

In an ideal world a divorcing couple would reach an amicable agreement regarding the family home, the division of assets, maintenance etc. but in reality, couples are often unable to do this. 

If the couple cannot agree then an application to Court will be needed so that the Court can make an appropriate Order stating how the matrimonial assets are to be divided. 

This will be costly for both parties and so divorcing couples should try to reach an agreement if at all possible. 

Even if an amicable agreement is reached it must be the subject of a Consent Order and approved by the Court for it to be legally binding on both parties.

Divorcing couples may wish to seek independent legal advice to ensure their interests are properly protected.

These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.

If you have a question for Fiona McNulty, please email or write to Legal Solutions, Homes & Property, Evening Standard, 2 Derry Street, W8 5EE. Questions cannot be answered individually, but we will try to feature them here. Fiona McNulty is a solicitor specialising in residential property.


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