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Divorcing with children – who gets the house?
Separation & Divorce
It is no surprise that a divorce is typically considered one of the most stressful experiences, alongside moving house and loss of a loved one. This is often because it involves a combination of all of those – grieving for a relationship/future that is not as you intended or hoped, and the immediate thought of where you are going to live and whether this will involve moving home.
Where you have children, this makes it even more important to strive to provide a solution that provides them, and you, with stability. Often where there are young children the house can become a symbol of security at a time of great uncertainty and as a result establishing who gets the house in a divorce or whether it should be sold is a crucial decision.
There are no hard and fast rules as to whether a house would be retained or sold, whether immediately or deferred for a few years. It will all depend on your own particular circumstances and consideration of affordability and needs.
If I have children that means the home has to be kept until the youngest is 18?
Not necessarily. As above there are no set rules that determine what happens to the family home during a divorce. The family home is one of the assets that needs to be considered.
The law in England and Wales confirms that the first consideration must be the welfare of any minor children of the family under the age of 18. In general the law strives to ensure that any settlement will result in the children having a secure home with as a minimal impact to their quality of life as possible – but that does not always mean remaining in the family home.
Section 25 of the Matrimonial Causes Act 1973 contains the factors that the law says should be taken into account when considering a fair division of finances, as above, with the first consideration being the welfare of any children under 18. One of those factors and often the most magnetic of those is that of financial needs, obligations and responsibilities.
Minor children are clearly a responsibility and they must be taken into account when considering housing needs. If the children are spending considerable time with both parents – even if this is more time with one than the other – the law is wary of a settlement which would result in one parent remaining in good quality accommodation and the other in small or unsuitable accommodation and the solution that should ensure the children have a good home with both parents.
If, after consideration of your particular circumstances, it is possible for the family home to be retained and the financial assets to be divided in a fair way such that the other parent can also provide a home for the children (of similar if not the same quality – and not necessarily in purchased accommodation at least immediately) than it is likely a Court would favour that as an outcome. However sometimes this does not work – either it means that the other parent would not be able to meet their housing need or if there is simply insufficient money for the family home to be retained i.e. it cannot be afforded. In some cases a solution could be for the family home to be retained, typically by the parent with whom the children spend more time, and the other person having to wait for their share of the capital if this is the only way to ensure the children’s housing needs can be met but this would need careful exploration and how to fairly deal with the other parent who has to wait for their capital. Questions such as can they be released from the mortgage immediately? How does their share get protected? Who pays the bills/mortgage in the meantime? Are there potential tax consequences etc all need to be considered.
The law will consider all of the circumstances of the case, children being one of the factors they take into account but often the reality is that there is insufficient money to make two homes out of one and difficult decisions have to be made and what is fair for one couple may not be fair for another and therefore legal advice is crucial.
What can be ordered about the home?
There are a number of ways that the family home can be dealt with, from a sale, to one party retaining the family home and either it being transferred to them and paying the other person their agreed interest or a situation where the home is retained and the other person has to wait for their funds until agreed events.
The law will strive to ensure that the children have stability as far as possible but equally have to balance the fairness to each parent and much will turn on the affordability and what options can be thought of to ensure all are suitably housed.
A type of order that can be used in cases where there is insufficient money to rehouse both parties or even one party if there was to be a sale is an order whereby the parent with primary care of the children would remain in the family home until certain events took place (known as trigger events) the main typical one being the youngest child reaching the age of 18 or finishing full-time secondary education. At that point the family home would be sold, and the proceeds divided in a way that has already been agreed. These remain possible to obtain although have a number of pros/cons which have to be carefully considered.
The main advantage of this arrangement is to minimise disruption to the children as they stay living in the family home but the disadvantages are the other parent has to wait for their funds (and in some cases may have to remain linked to the existing mortgage) and it delays the disruption to both parents as the sale would take place at the agreed points in the future at which point that parents circumstances are unknown. These types of Order are typically seen as an Order of last resort or where both parents agree that the children should be retained in their family home until a future circumstance. It may be a case that it is preferable to sell the house even if you have children who are minors if that is fair in your circumstances.
This type of settlement can either be done with the parties retaining the property in joint names subject to agreed conditions – which are set out in a clear legal document or with the property being transferred to one person immediately with the other persons interest being deferred and secured by way of a legal charge over the property, to be paid on agreed events in the future. A transfer and charge has the advantage of enabling the other parent to be released from the mortgage on the family home but if that is not possible then remaining on the family home and mortgage, for the shortest time possible, can sometimes be the best option.
Summary
The answer to the question of who gets a house in a divorce for children is -it depends. The fact that there are children within the marriage is one of the factors taken into account. The law is concerned to ensure that the housing need of the children is secure as far as possible but whether this is remaining in the family home, moving to other owned accommodation or even a sale with both parents being in rental accommodation depends entirely on your own particular circumstances.
This is a complex area and your first option would be to seek the advice of a specialist family lawyer to discuss your particular circumstances and the more likely outcome for you. We recognise that as parents your priority is to make sure that the children are looked after and having an expert professional on your side to assist you in reaching a decision that you need to make is invaluable.
Disclaimer: Please note that this page is for guidance only and does not replace legal advice. It is correct with the law at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation – contact us for dedicated help for you.
