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Divorce and the family home

View profile for Amanda Rimmer
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Divorce and the family home

The family home. A place of sanctity. But it can also become the centre of a battlefield when separating. Who should keep it and who should leave? You might both want it but can’t live under the same roof once the relationship is over.

What are your options?

Your partner has done something and you just want them out. You need your space so you lock the door or change the locks. Problem – they may own the house with you and have a right of access. If you lock your partner out and it’s their house, they can get a locksmith to get them back in but they have to repair any damage. 

However, there might be an order excluding one from their home. If you enter the home you’re in breach of the court order, which can have serious consequences. Even though you own it, you may be committing a criminal offence if you use or threaten violence to gain entry and your partner is inside and doesn’t want you back. The offence is committed whether the violence or threat is directed against your partner or against the property – which could be the action of trying to get back in.

What neither party wants is a huge escalating scene which spirals out of control. There are remedies available through the court to get back into your home which can be taken very quickly if need be. 

In the longer term both of you need a place to live but the welfare of your children and the need for them to have a suitable home will be a first consideration for any judge. So how does the court achieve a home for your children whilst also providing a home for both of you and achieving a fair and reasonable division of all of your assets?  There are a number of options – the house might be sold and the proceeds divided equally or unequally, or it may be transferred to one of you with a payment to the other or no payment at all, or it might remain in your joint names with one of you living there and with it being sold at a later date. 

One might have to wait some time to get money from the property or not be able to buy another place until the property is sold, for example when the children leave home. Whilst there is no presumption of an equal division of the family assets the starting point is equality, although this can be departed from where the needs of one surpass that of the other. 

Many of us buy our family homes together when we start in a relationship. But some also own properties before the relationship begins. So would that be share assets when you split up? There have been many arguments about these situations. The outcome is that just because a property owned before the relationship has become the family home, doesn’t necessarily mean it should be treated as a family asset or shared equally. But there has got to be real evidence and reason before it will be divided unequally unless an unequal share is necessary to meet a specific need. 

You’re splitting up and one of you wants to sell immediately. The problem comes when the other doesn’t agree. A jointly owned property cannot be sold unless you both agree. You can’t force your partner to sell a property they own. Only the court can do that following an application for an order for sale. This may be only part of the overall financial settlement if there is other money and assets. A sale is not going to happen in the next couple of weeks if the court becomes involved. You can’t sell the property whilst you wait for the rest of the settlement to be dealt with unless you both agree. There are very limited circumstances when one of you might be able to push a sale through by a different legal route.

Whilst all this is going on the mortgage and bills have to still be paid.  If you have a mortgage in joint names you are both equally liable for it. Firstly try and agree who is paying what for the immediate future and do what you can to keep things above water. If you can’t manage financially do something sooner rather than later – you might have options and there may well be help available. 

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