Housing is often a major concern for anyone contemplating divorce. An income, or even a dual income, that may have comfortably covered a single family home does not always easily stretch to providing two of them. This may be compounded if a divorcing couple has dependent children.
Some couples have sufficient equity in their existing property or enough income to be able to ensure that, post-divorce, both individuals are housed in accommodation that is comparable to the home that they lived in prior to divorce. For others, compromises must be made. Sometimes a couple can reach these compromises themselves but it may be necessary to use the services of an independent mediator or a firm of family law solicitors to achieve an outcome acceptable to both parties. Couples may need to engage the services of, for example, men’s divorce lawyers, who specialise is helping high-net-worth individuals through divorce.
The courts that grant divorces in England and Wales do not automatically adjudicate on property division. If asked to deal with this issue, a court will take each case on its own circumstances. This may include the length of the marriage, whether there are any dependent children and the existence of any prenuptial agreement.
When considering post-divorce housing options, there are several things to think about.
Property Owned by Both Parties
If a property is owned by both parties, both individuals, even once divorced, have the right to return to the property and live in it. The only way of subverting this right is via a court order. Equally, both parties are responsible for the mortgage payments if the property is jointly mortgaged. Moving out does not absolve either party of responsibility.
In England and Wales, there are two possible forms of ownership: joint tenancy and tenancy in common. If there is any doubt, it is essential to find out which applies to the property in question because they are dealt with in different ways under the law. Joint tenants own the property equally. When one party dies, the other automatically inherits their share of the property, and a will cannot override this.
Consequently, if a couple is divorcing, they may wish to convert a joint tenancy into a tenancy in common in case one of them dies before the divorce is finalised. With a tenancy in common, it is possible for the property’s ownership to be held in unequal shares (for example, 60% and 40%), perhaps to reflect differing financial contributions to the deposit.
Each party can leave their share of the property to whoever they wish in their will. However, if there is no will, the property will pass under the intestacy laws. For a married person, even one on the road to divorce, this is likely to mean that their spouse inherits. Severing the joint tenancy is a simple process via written notification to the other party and does not require the other party’s consent. If the property is mortgaged, it is also important to notify the mortgage company. This is also an important step for anyone who fears that their co-owner may renege on their mortgage obligations.
Only One Party to the Marriage Owns the Property
If a divorcing couple lives in a property that is owned by only one of them, it is likely that both individuals will retain the right to live there until the divorce. However, this situation can be changed as a result of a court order. If a property is owned in this way, it is usually sensible for both parties to seek legal advice from divorce solicitors in London or elsewhere. The party who owns the property should not assume that the other party will have no rights to any equity in the property.
It may be possible for the person who does not own the property to register their interest in it via a Matrimonial Home Rights Notice. This will prevent the owner from selling or otherwise disposing of the property or applying for a larger mortgage without notifying their ex-spouse.
Renting Under a Joint Tenancy
As with a jointly owned property, both tenants will have the right to stay in the rented home unless a court orders otherwise. Similarly, the obligation to pay the rent continues in relation to both individuals even if one party to the rental agreement moves out of the property. Disputes may need to be resolved by a court.
Renting Under a Sole Tenancy
This is a situation in which the individual whose name is not on the tenancy is best advised to seek urgent legal advice from divorce lawyers. Where appropriate, they will refer the matter to colleagues experienced in housing law. It may be possible for the person who is not named on the tenancy to take it over in their own name.
Sharing a Home After Separation
This is unlikely to be the ideal situation for many couples but is more common than many realise. It can have particular advantages when it comes to providing a continued stable home for any children. Sharing a home will not necessarily affect a couple’s legal separation but they may need to seek legal advice on this point.
Dividing an Owned Home After Divorce
An owned property may be divided in several ways.
- The property may be sold, with both parties moving out and receiving a share of the proceeds.
- One party may buy the other out.
- The home may be kept, with one party continuing to live in it and any sale postponed. This is often achieved via a court order. A Mesher Order postpones the sale until a particular event occurs, such as until the youngest child finishes full-time education. A Martin Order postpones the sale until the party who is living in it either remarries or dies.
- An interest in the property may be transferred from one person to another. This usually occurs as part of a financial settlement, and often when there are dependent children to be housed. The party that retains an interest in the property will receive a certain percentage of its value when it is sold.