Divorce and the Family Home

Question

I am contemplating divorce. Will I be able to stay in the family home?

Answer

Andrea Boulter, Head of Family Department replies:

The impact of divorce upon someone’s family home and mortgage is probably the issue which worries separating couples more than any other. It is the area that demands the most careful legal expertise to resolve.

If you find yourself desperately unhappy within your marriage to the point where you wish to separate you should take note of the following key points:-

  • In any decision in relation to marital finances the court has to have first consideration to the welfare of any child of the family under the age of 18
  • The court has to balance the parties’ respective incomes, earning capacity, property and other financial resources either held now or which they may reasonably be acquire in the future
  • The court has to consider the needs and responsibilities of the parties
  • The court has to consider the parties standard of living
  • The court has to consider the parties’ contributions
  • A spouse’s level of income will affect their mortgage capacity and consequently their ability to re-house/re- mortgage

There are other criteria the court has to consider but in cases involving the family home on divorce however the above points tend to be the most important in judicial decision making. If at all possible the court wants children to remain in a securely owned home and not to be placed at risk of homelessness or being moved into short term privately rented accommodation.

A sale of the average home is seen as a matter of last resort while children are still at school unless any linked mortgage is no longer affordable. The family court has the power to decide the future of the family home. You may be able to retain occupation of the family home long after the marriage is at an end if you have school age children.  In seeking advice, however, you must ensure your solicitor has all the facts about your situation.

If you have a query or would like to book an appointment please get in touch with our First Contact Team on 01256 320555 email mail@clarkeandson.co.uk.