Family home

The family home in divorce
'A house is not a home'
The family home, or 'the former matrimonial home' (FMH) as referred to in legal letters, is a very emotive subject. It could also represent the largest asset but you should also consider the pension pot as a valuable asset too. The above saying, 'A house is not a home,' may be easy to understand in everyday circumstances but place it in the theatre of divorce and everything can change.A home is where you feel secure . A home is where you nurture and provide for those you love and care for. A home is where you feel secure and where you can be yourself. You can close the front door of your home, pull up the drawbridge and shut the world out.

Be careful when discussing selling the home
Threaten to take this away suddenly and you will arouse many passions, especially where children are concerned. This may have been the only family home where births have been celebrated and deaths mourned, a place where happiness once lived and dreams were made. It may represent the only security left, an identity, a place to hold on to at all costs. A place which could represent the very heart of your spouse. Be careful. Act with caution and consideration. Have you considered a short term plan as suggested in our previous article?

How can we decide about the home?
Protect it - maintain payments
First of all, you should consider protecting the family home, whether it is your own or rented.
Arrangements should be put in place to continue any payments regarding the property or properties. You should not forget any insurance or endowment policies. If you are genuinely unable to maintain these payments, you should get in touch with the mortgage provider or landlord and the other companies concerned.
It would not be wise to threaten non-payment or sale as this could lead to animosity and fear. Fear, after all, is a very powerful, negative emotion which could lead to a lengthening of the divorce process and an increase in costs not to mention the stress and hardship which would inevitably accompany this route. Providing an atmosphere of trust should be an aim in the early stages so that everyone can then move on to negotiate while short term arrangements are in place.

How the family home plays a part in settlements
When emotions have settled down
There are many ways that a settlement can be reached concerning the family home. Once initial high emotions have calmed down, discussions could begin. Once more, it is imperative to get independent legal advice so that you can negotiate while knowing what a court would be likely to decide. There are lots of myths surrounding the fate of the family home and lots of personal anecdotes but it is best to ignore these and concentrate on the facts of your particular case.

When you know the facts
When you know the facts, when you have both provided a full and frank disclosure of finances, when you both realise what type of settlement you both need, then and only then can you decide what to do. When these initial steps have been taken, whether amicably, through mediation or solicitors, you can then examine any offer on its merits and know whether your partner is being reasonable or not.

What would a court decide?
Each case is different but there are common issues which would be examined by the court. The law in England and Wales does not mean that there is a fifty-fifty split regarding property and assets but each side must realise that there is only so much money in the pot to go round. The court would look at all your circumstances, some of which are detailed in one of our previous articles,
Legal considerations
Knowing what a court would be most likely to rule may help you to consider the situation more realistically and, hopefully, come to a voluntary agreement.

A reasonable offer?
Your spouse may have offered a sensible package or, on the other hand, this information could draw your attention to the possibility of a better deal for you. Your solicitor would offer guidance in this matter. A court could order the sale of a property and apportion the proceeds between both parties in any way it chooses. Or it could split the ownership differently so that one party retains an interest in the property until a later date. It could order a lump sum to be paid, endowment or life policy to be split or reassigned and the pension pot could also be allocated differently. It can also consider any inheritance if it seems that two properties cannot be bought with the declared financial assets. So perhaps you now realise that the courts do indeed have wide powers which they can execute.

Some of the court's considerations are listed below:

  • The welfare of a child of the family
  • The income, earning capacity, property and resources of each person
  • The financial needs, obligations and responsibilities of each person
  • The standard of living enjoyed by the family before the breakdown of the marriage.
  • The age of each person and the duration of the marriage
  • Any physical or mental disability
  • The contribution made by each person to the welfare of the family, including looking after the home and bringing up children.
  • The conduct of each person, but only if it is so bad it would be unfair to ignore it. This is only in very exceptional cases.
  • The court may also decide whether a clean break is appropriate.

What if we haven't been married long and we don't have any children?
If there aren't any children, the marriage has been short (with the exception of a marriage later in life where one spouse may lose a home after having given up all rights from a previous divorce settlement), and both parties are able to support themselves having equally invested in the property, then the home would probably be sold and assets divided equally. Again, the court would consider the above list of considerations.

What if there is enough in the pot to buy two houses?
This, of course, would be ideal. The primary concern of the court would be to provide a suitable home for the parent with the main care of any children while providing a home where they could visit the other parent. The above list of considerations would again be consulted.

But there isn't enough money to buy another property. What could happen?
The court could consider selling the property and dividing the proceeds according to the needs of each spouse so that two smaller properties could be bought. If this is not financially feasible, then the first consideration of the court would be any dependent children. A home must be provided for the children irrespective of the other parent's plans and aspirations.

Does that mean that I would lose everything?
This is not necessarily the case. The court has wide powers in apportioning assets. It could rule that one parent maintains a financial interest in the property, say until the children become independent. When the house is sold, the proceeds, after paying off any mortgage, could be divided as previously ruled by the court. This could be fifty-fifty, seventy-thirty or any combination. This is known as a Mesher order. It could also arrange for a lump sum to be made to one party in lieu of an interest in the property. The court's powers are wide.
But it could also rule that the deeds of the house are transferred in full to one party. When it is impossible to secure any other assets, this is sometimes the only security the court can give to a parent with care of the children, usually the mother.

But the property is only in one name. Do I have any rights?
Steps may be taken to protect your interest by registering this with the Land Registry. This could ensure that the property cannot be sold or further charges placed on the property without your knowledge, pending negotiations or legal proceedings. This is purely to protect your interests. Discuss this with your solicitor.

Does my claim to the property alter if I have to leave it?
If the atmosphere at home has become unbearable or there is domestic violence and one of you chooses to leave, that person does not lose any entitlement to a claim in the property. If you are leaving, it could be prudent to collect your personal documents as it could become difficult to obtain them at a later date if circumstances and emotions change. Again, this could be discussed with your solicitor or the police in an emergency as the law could possibly provide various ways of protecting you and any children.

My spouse is telling me I have to sell up
Only take advice from your own lawyer!

But my spouse has moved in with a new partner. This is so unfair
When submitting the details of your finances, this should also be declared. A new partner's property cannot be placed in the pot, but a court could consider that there would therefore be more money available to provide for the other spouse's accommodation, particularly when children are concerned. Likewise, if a new partner has moved into the ex matrimonial home, then the court would assume that the new partner is contributing to the running expenses of the household. If either of you has plans to remarry, this should also be declared.

But my home is rented. What can I do?
The courts have power to make a transfer order on divorce which includes some types of rented property. Your solicitor should be able to advise you but don't delay as timing could be important.

'Living securely on a lower standard of living is far better than a higher standard of living that is always at risk.'

Further information
Look in our Further help section for agencies and companies willing to assist you. By considering your options, deciding what you want and what is feasible is the best course of action.

Remaining in the family home
Sometimes staying in the family home can be rather burdensome and expensive. It may be an ongoing financial struggle to keep up with payments: mortgage, insurance, council tax and utilities. Consider the upkeep too. If one of you usually did the decorating, odd jobs and the garden, could you do this on your own or pay for someone else to do it? Your new budget may not have provision for this. If you have children, maintaining the family home could result in less money to go round for them and, as we all know, children's costs increase, not decrease, as they grow older.

A new start
It is sometimes good to have a new start in a different house, to make it your own with your own style and character and within your new budget. A house is not a home and there are homes you run from and those you run to. Make yours one people run to. Children adapt quickly too. Plan carefully. Take good legal advice and get good information about available mortgages. See the YBS Fresh Start mortgages detailed above. See also the Find a solicitor service in our Legal section.

Further information
Please see our article on Housing and Benefits in our Further help section.

'We must be willing to get rid of the life we planned, so as to have the life we have waiting for us.'
J. Campbell

Top of page


Search our Directory for our recommended divorce solicitors. Also personal referral service.

[Search Directory Now]