My house is my castle: what happens to the family home if you separate?

Typical lawyers answer: it depends on the facts. This piece deals with the options available to married families, and those in civil partnerships. For ease of reference, I refer to marriages throughout.

If you are married, it may not matter if the house is in your name, joint names or the other person’s name. A court has wide powers to sell, transfer or delay a sale. What happens will depend on the circumstances you are in and other aspects of the settlement.

If you have children, continuity may be a key issue: you may wish to stay in the family home to provide stability and familiarity. Location can be key as it maintains connections to schools, friends and support generally. But this is one factor and must be balanced against the needs of the other party.

What happens will vary, but will be affected what can be afforded: how will the mortgage or rent be paid post-separation?  The best solution may be to stay in the property, but if it is unaffordable, that is unlikely to happen.

If you must move, similar considerations apply: the location must be sensible and take account of schools and allow each parent to spend time with the children. A realistic view needs to be taken by both, not least of the fact that both parties will need reasonable accommodation.

If the family home is sold, there may be little option but for an unequal share of the sale proceeds. This will have to be justified and is not automatic: it will take account of what each of you can borrow and afford to repay by way of a mortgage.  If this happens, there may also be a trade off in other areas: the party receiving less may have a more expensive mortgage and so may not be able to pay maintenance to you (note this does not include child maintenance which is not reduced in this way unless you agree to do so).

If you do not have children and the marriage was short, it is highly likely that the property will be sold, and each will get what they put in. Again, this will vary and could result in an equal or unequal division, especially of the deposit was paid only by one of you.

Sometimes the only realistic option is to keep the family home generally if there are young children and it is not realistic to sell. In this case, it is possible to agree on the shares for each delay the sale until, for example, the youngest child reaches the age of 18 or finishes university. At that stage the property will be sold, and each will get their share.

It is also possible for one party to buy the other out and transfer the house into their sole name, but this will require taking on the mortgage and paying the other party. A combination of savings, mortgage and family support can achieve this.

As can be seen, finding the right option can require a lot of preparation and this is one element of a settlement. Housing is part, but not the whole of your needs, and so must be considered along with the other elements of a financial settlement.

If you wish to discuss this further, please contact one of the team

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