Who gets the house in a divorce involving children?

While there are many factors that may influence this, if there are children involved, their welfare will always be prioritised. There are various options for splitting the house, such as selling it and sharing the proceeds, one party buying another out, or a legal agreement to defer the sale until a later date in the future when children are older. Often, one party who is responsible for carrying out the lion’s share of child care is referred to as the “primary caregiver”. It is common for the primary caregiver to seek that he/she be permitted to stay in the family home to minimise disruption for any minors.

In any case, the home shouldn’t be looked at in isolation, it’s important that any divorce and property negotiations also take income and pension provision into account.

Divorcing couples can negotiate a financial agreement themselves, or they can apply to the courts to decide. In either setting, the parties will need to ensure that the terms of any financial agreement are recorded in an Order which, once approved by the Court, will then become legally binding and enforceable upon them.

In this article, we’ll look at some of the key factors the courts will consider when deciding who gets the house in a divorce involving children.

The main carer of the children

Whether or not there are children involved is one of the biggest influential factors in divorce and their welfare is prioritised in English and Welsh divorce laws.

Protecting their welfare means minimising disruption to their lives as much as possible. If it is feasible, this may result in the primary caregiver being awarded the right to stay in the family home.

Courts will generally look at things like the ages of the children, the couple’s ages, the length of marriage or civil partnership, the value of assets, before, during and after the marriage and whether anyone involved has any disabilities or additional needs.

It also depends on whether the primary caregiver can afford to a) keep the house and b) potentially buy out the other party’s share in the equity (if applicable). While the leaving spouse may be required to help pay the mortgage as part of maintenance payments, this will also depend on their own circumstances and what they can afford. Often, the Court will try to promote a “clean break” between parties, if possible.

Sharing custody of the children

The issue can be further complicated where custody is shared equally between both parents. In the joint custody scenario, it’s common for children to have two family homes and the courts will therefore aim to ensure there is an equal standard of living between both parents. A court’s decision on who gets the family home will therefore be based on this, again with the needs and welfare of the children as the first priority.

Joint mortgages

Courts will generally adopt a principle of fairness, based on the financial needs of each party and it doesn’t just come down to whose name a home is in, or if it’s rented or owned.

Where a house is owned in both names, both parties are legally entitled to live there and the divorce proceedings will decide what happens to the family home or who gets to stay.

If you’re both named on the mortgage, it means you are both jointly liable for the mortgage payments in full. So if one person doesn’t pay their share, the other party can still be held liable for 100% of the payments.

For that reason, couples might try to sort out the mortgage to remove one of the partner’s names as this can simplify responsibility for payment later. 

Being named on the mortgage is different to being a legal owner of a property. The latter depends on who is named on the title deeds as the owner of the property, whereas the mortgage is just the vehicle of payment.

Pre-marital assets

We often get asked ‘is a house purchased before marriage, a marital asset?’.

Initially, all assets/property owned by either party (whether in their sole or joint names) are taken into account as part of a divorce settlement. If there is a valid Pre-Nuptial/Post-Nuptial Agreement which “ring-fences” an asset/property from the marital pot, then such assets will usually be excluded from negotiations. 

However, the Court’s main focus is to ensure that the “needs” of both parties are met. In the absence of a valid Pre-Nuptial/Post-Nuptial Agreement, the situation relating to a house owned before marriage depends on a number of factors. In particular, if it was lived in for any period of time as a family home, or if finances related to it have become absorbed within the marriage, then it becomes more likely that it will be included in the matrimonial pot for the purposes of divorce.

In the case that the courts get involved in dividing assets, they will base their decision on Section 25 of the Matrimonial Causes Act 1973 which lists the various factors that will be taken into account.

This includes:

• The welfare of any children under 18
• Income, earning capacity, property and financial resources which each party is likely to have in the foreseeable future
• The financial needs, obligations and responsibilities of each party now and in the foreseeable future
• The standard of living enjoyed by each prior to marriage breakdown
• Age of each party and the length of the marriage

How we can help

Divorce is a difficult time, even when it’s amicable. It’s important to get someone to represent you and make sure you’re protected, whatever your situation.

Alsters Kelley solicitors are here to guide you every step of the way. Our family lawyers are members of Resolution, a community of family justice professionals who work with families and individuals to resolve issues in a constructive way. Members commit to a Code of Practice and are dedicated to producing better outcomes for all concerned.

No two divorces are the same and everyone’s circumstances are different. Whatever your situation, we will always handle your case with care and sensitivity and do everything in our power to make sure your divorce is dealt with as quickly and efficiently as possible.

If you would like some legal advice on divorce or separation, please contact Shelley DeWorringham, Head of Family Law, telephone 01926 356000, or email shelleydeworringham@alsterskelley.com.