When a marriage or civil partnership breaks down one of the most emotive issues can be the family home. In other words, what happens to the house? It is essential that it is dealt with both sensitively and with a thoroughness which gives it the respect it deserves.
Financially, the home is treated as a marital asset and therefore an up to date valuation will be needed. Any mortgage and possibly costs of sale would be taken into account to calculate the ‘equity’. This would be considered as a ‘marital asset’ just as a share in a business or savings would do. How this marital asset is dealt with will depend on a number of factors and the family home and equity in the family home is not always dealt with in the same way.
Not just money
But this isn’t just about money. The court can take the wider context and circumstances into account and in doing so will look at factors such as whether or not there are children involved and what is the history in relation to the house, for example contributions made towards the property at the outset ie when the property was purchased.
As with most elements of family law the black and white letter of the law set out through statutes and cases simply set the parameters as to what is possible. But within that there can be a great deal of flexibility as to what a court is able to do. This facilitates the search for a solution which tries to find what is in the best interests of all concerned but also what is reasonable and fair. Of course sometimes there is only a limited amount of money and trying to find what is the most reasonable way of allocating or dividing the assets can be a difficult task. So in relation to the family home it could be that one party needs to remain there with the children. Or alternatively it might be sold and the money divided in such a way that each party is able to house themselves in new accommodation if there are the available funds to do so. Much will depend upon the overall means of parties as well as the very particular circumstances of each case, for example their needs or their income / earning capacity that can impact upon their ability to mortgage.
The starting point with both the family home and more generally is to try and facilitate a settlement which satisfies both parties. Whilst this can’t always be achieved it is preferable to make every effort to bring about an agreement. It might not provide the perfect solution to either party but it does have the great benefit of meaning both sides are able to exercise control and make clear decisions about the outcome. Mediation involves an impartial third party to assist in your negotiation. A solicitor can advise you about a settlement and negotiating a settlement of the family home and other assets.
Registering a Home Rights Notice
Sometimes a family home is only in one party’s name. One particular issue which might need to be considered is whether a party should register with the land registry what is called their ‘home rights’ in the property in order to provide protection against one party selling or mortgaging the property without the other knowing about it by registering a Home Rights Notice to provide protection whilst the parties are married. A divorce can have implications and you should seek advice about how a Home Rights Notice is affected by divorce.
There may be other properties that are not in joint names and a party may have a claim even though they are not on the title register. A solicitor can advise you about your entitlement and protecting any potential claim against that property.
The family home is a place where personal histories are lived out and it is much more than just a financial asset. With this in mind it is particularly important to make sure that it is dealt with in the correct way and that if possible a mutually satisfactory settlement can be reached.
Campions Solicitors have substantial experience of these issues. If you would like further advice or wish to discuss in general please contact our Director Daniel Priest on DPriest@campions.co.uk.