Division of the Family Home After Divorce

My husband and I are going through a divorce. I have two young children (and am the main caregiver) and I am worried about what will happen to the family home (a four-bed property in Hertfordshire). What generally happens to the family home after divorce, and will I be able to stay there with my children?

Divorce is a challenging process that involves numerous legal and emotional complexities, one of the most significant being the division of the family home, and so, this is a common question that people ask. In England and Wales, the division of assets, including the family home, is governed by a framework of legal principles designed to ensure fairness and equity. To help answer your question, I have detailed below the key factors and some of the legal considerations involved in the division of the family home after a divorce.

Legal Framework
The division of the family home during a divorce in England and Wales is primarily governed by the Matrimonial Causes Act 1973. The courts have broad discretion to divide assets and property in a manner they consider fair, taking into account various factors.

Key Factors in Division
1. Welfare of Children: The welfare of any children of the marriage is the court’s first consideration. Sometimes this means that the primary caregiver, which is you in your case, is allowed to stay in the family home to provide stability for the children.
2. Financial Needs and Resources: The court assesses the financial needs, obligations, and resources of both parties. This includes income, earning capacity, property, and other financial resources.
3. Standard of Living: The standard of living enjoyed by the family before the breakdown of the marriage is also considered. The aim is to enable both parties to maintain a reasonable standard of living post-divorce.
4. Age and Duration of Marriage: The age of the parties and the length of the marriage can influence the division. Longer marriages typically lead to more equal division, while shorter marriages might result in a less equal split.
5. Contributions to the Marriage: Both financial and non-financial contributions are considered. Non-financial contributions, such as homemaking and child-rearing, are valued equally to financial contributions.
6. Future Needs: The future needs of both parties, including their ability to rehouse and support themselves, play a crucial role. This can affect decisions on whether the family home should be sold or retained by one party.
Possible Outcomes
1. Sale of the Home: The most common outcome is the sale of the family home, with the proceeds divided between the parties. The exact division depends on the factors outlined above.
2. Transfer of Ownership: In some cases, the court may order the transfer of ownership of the home to one party, typically the primary caregiver of any children. The other party may be compensated with a larger share of other assets.
3. Postponed Sale: The sale of the home may be postponed, allowing the primary caregiver and children to remain in the home until a certain event occurs, such as the children reaching adulthood. This is known as a Mesher Order.
4. Retaining the Home: If financially feasible, one party may buy out the other’s share and retain the home. This often requires refinancing the mortgage or securing additional funds.

Legal Process
The process usually involves several steps:
1. Financial Disclosure: both you and your husband must provide full and honest disclosure of your financial circumstances. This includes assets, liabilities, income, and expenses.
2. Negotiation and Mediation: you would be encouraged to reach an agreement through negotiation or mediation. This can save time and costs compared to court proceedings.
3. Court Proceedings: If an agreement cannot be reached, the matter goes to court. The court then makes a binding decision based on the principles outlined above.
4. Consent Order: If an agreement is reached, it needs to be formalised through a Consent Order, which is made by the court. No court attendance is required.

Practical Considerations
1. Emotional Impact: The emotional impact of losing the family home can be significant. You should seek support from friends, family, or professionals during your divorce, if you haven’t already.
2. Financial Planning: Post-divorce financial planning is crucial. Understanding the financial implications of keeping or selling the home can help in making informed decisions.
3. Legal Advice: Obtaining independent legal advice ensures that both you and your husband understand your rights and options. A solicitor can provide guidance tailored to individual circumstances.

The division of the family home after a divorce is a complex process that aims to achieve fairness and equity. The courts consider various factors, prioritising the welfare of any children and the financial needs and contributions of both parties. While the legal framework provides a structured approach, each case is unique, and outcomes can vary widely. Professional legal advice and emotional support can help you navigate this challenging period and make informed decisions about your family’s future housing arrangements.

Christina Pippas is an experienced Family Lawyer at Collyer Bristow advising on all areas of relationship breakdown including divorce and separation, children issues, cohabitation disputes, nuptial agreements and financial claims. She has particular expertise in dealing with complex private law children cases, often with an international and religious dimension. The financial dispute cases that Christina works on tend to be high value and often also have an international dimension with trust interests or complex corporate structures.

Christina read Philosophy and Theology at Oxford University and before joining Collyer Bristow, she worked in Banking and Finance at DWF.

If you would like to contact Christina, please do so at [email protected]
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