Who gets the house in a divorce?

If you’re considering divorce you will need to consider the division of your belongings, including your family home. However, this isn't always as straight-forward as you might expect. Associate Legal Executive, Jennifer Hudec, tells us more about the key considerations and what you need to do to protect your property rights.

Legal ownership - how is a house divided in a divorce?

First, it is important for any divorcing couple to have a clear understanding of how they own their property. There are two ways that a person can own a property: Joint Tenants – this means that you and your spouse both own 100% of the property. It also means that if you die before your house is sold/ your financial matters are concluded, your entire share in the property will pass to your spouse in full, irrespective of whether or not you have left your share to someone else under your Will. Tenants in Common – this means that you and your spouse own distinct shares of your property. The default position for tenants in common is that each owns 50% of the property in full, However, this is not always the case and you should check the copy of the Transfer Deed that you signed during the conveyancing process (TR1) to check. In this instance, if you were to die before your house is sold/your financial matters are concluded, then your entire share in the property will pass to whomever you have left your share to under your Will.

What if the house is in my spouse’s name?

If your family home is in your spouse’s name, but not your name (regardless of whether you pay towards the mortgage or the bills), it is important to protect yourself legally on the title. If you do not take steps to make the Land Registry aware that you have an interest in the property, then your spouse may be able to sell the house without your knowledge/consent, especially if you no longer live there.

High rise flats - what happens during a divorce?

If you live in a high rise flat, or you own such a property as part of an investment portfolio, you need to be aware that the property’s structure (specifically cladding) can seriously affect the value of the plot and your ability to sell as many of these properties have been classified as unmanageable at first instance.

Leasehold property and divorce

If you own a leasehold property, then it is worth instructing a conveyancer to briefly review your lease before engaging in any financial negotiations or indeed and valuations (as 9/10 valuers will assume good Title and will not do this ground work as part of the valuation process). Again, escalating ground rent can have a serious impact upon the valuation of the property and mortgage potential, so it is essential that this is addressed first, before agreeing to a sale or transfer of the property.

Help to buy scheme and divorce

If you brought your property with the assistance of the Help to Buy Scheme with your spouse, you must remember that you require the Scheme’s authority for only one party to be released from the agreement, which is vital if you are considering making/ accepting an offer to transfer the property to one or other of your sole names.