Selling the family home owing to a divorce has got to be up there as one of the most stressful things you may have to undertake. The home or what the lawyers will refer to, as the Former Matrimonial Home will be steeped in memories and emotion. It will also probably be the one of the biggest assets that’s worth fighting for.
It’s important to remember that when you divorce it does not automatically mean that the Land registry sees it in any other way. The divorce still means you both own the home.
So lets look at property ownership
When selling a house in a divorce you need to establish exactly the status of ownership who legally has the right to live in it and how it could it affect your financial settlement.
Your property might be owned in one of these ways:
1.) by one of you
2.) jointly, by both of you and there are different forms of joint ownership, or
3.) by someone else entirely (like a family member or trust)
Once the exact situation is established your on your way to protecting your own interests in the property.
Consideration when selling a home after divorce
Here are three questions you should consider:
Whether there is sufficient equity in the home to provide two new homes for each party.
Whether there is enough equity to make the sale worthwhile where one estranged party already has alternative accommodation(for example where one spouse has moved in with a new partner).
Whatever proceeds are returned from the sale will then be divisible between the parties according to the court’s order to provide capital for each spouse.
What if your not named on the deeds?
If you are separating from your partner and your name is not on the mortgage or deed of the house it does not mean that you have no rights or claim on the property.
When it comes to divorce in the UK the matrimonial home is considered a joint asset and you cannot be forced to leave by your partner. If your name is not on the mortgage or deed you can register your matrimonial rights through the Land Registry to stop your partner selling without your consideration.
Even if a house is only in the name of one spouse, if it is the marital home the other has a legal right of occupation for as long as they remain married to each other
Getting nasty over the property
Messy divorces will often mean threats not to pay the mortgage or maintain insurances. This is financial suicide and although is dramatic and emotive it will only serve to weaken the asset and may even end up with it be taken away from you both. If you unable to maintain these payments, you should get in touch with the mortgage provider or landlord and the other companies concerned.
Jaw jaw not war war
Solicitors and others in involved in the legal process can unwittingly stoke the fire of emotions and give some false hope or unrealistic expectations . It’s usually in your best interest to work it out directly with your spouse what do do with the former matrimonial home .This allows both of you to have at least some control over your destiny and also allows you to avoid the costs and emotional stress involved in going to court.
What a divorce judge can do to you both
A court could order that:
Ownership stays the same but one of you is given the right to stay (for example, until children reach 18).
Ownership of the home is transferred to one of you, with perhaps a lesser share of other possessions.
The home is transferred to one of you but with a charge secured on the property, so that the other party receives a set percentage when the home is sold
The home is sold and the proceeds split between you, in whatever proportions seem fair, for you both to start afresh.
Free Independent Advice
This article is by no way legal advice and the best way forward is to obtain sound advice that 100% impartial i.e not your divorce representative. A good place to start is the Money Advice Service see guide Protect your finances during a divorce
Other good places for advice are
Ending a a Marriage (Citizens Advice Bureau)