One of the most common and pressing concerns for anyone going through a divorce is: what happens to the family home? For most couples, the home is their single largest asset, and it is often tied up with significant emotional attachment. If you are facing divorce in Enfield or anywhere in North London, understanding your options is crucial.
At Adel Jibs & Co Solicitors, we regularly advise clients on how the family home is dealt with in divorce proceedings. Here is a practical guide to help you understand what to expect.
The Court’s Approach to the Family Home
When a couple divorces, the court has wide powers to deal with the family home under Section 25 of the Matrimonial Causes Act 1973. There is no automatic rule — the court considers all the circumstances of the case, with the welfare of any children under 18 being the first consideration.
The key factors the court considers include:
- The financial needs and resources of each party
- The standard of living during the marriage
- The ages of the parties and the length of the marriage
- Each party’s contributions to the family (including homemaking and childcare)
- The needs of any children — particularly where they will live
The Main Options for the Family Home
Option 1: Sell the Home and Split the Proceeds
This is the most straightforward option. The property is sold on the open market, the mortgage and any other secured debts are paid off, and the remaining equity is divided between the parties. The split does not have to be 50/50 — it depends on the overall financial picture and each party’s needs.
When this works well: When both parties can afford to rehouse themselves independently, and neither has a strong need to remain in the property.
Option 2: One Party Buys Out the Other
One spouse may wish to keep the family home, particularly if they are the primary carer for the children. In this case, they can “buy out” the other party’s share — either by:
- Remortgaging the property in their sole name and paying the other party a lump sum
- Offsetting the other party’s share against other assets (for example, one party keeps the house while the other keeps a larger share of pensions or savings)
When this works well: When one party can afford to take on the mortgage alone and wants to provide stability for children.
Option 3: Transfer of Property
The court can order that the property be transferred from one party to the other, either outright or subject to conditions. This might happen where one party has significantly greater financial needs, or where the property is needed to house children.
Option 4: Mesher Order (Deferred Sale)
A Mesher order allows one party (usually the one caring for the children) to remain in the home until a specified “trigger event” occurs, at which point the property is sold and the proceeds divided. Common trigger events include:
- The youngest child reaching 18 (or finishing full-time education)
- The occupying party remarrying or cohabiting
- The occupying party choosing to sell
- The death of the occupying party
When this works well: When children need stability and the occupying parent cannot afford to buy out the other’s share now, but the non-occupying parent will eventually receive their share.
Option 5: Martin Order
A Martin order is similar to a Mesher order, but it allows the occupying party to remain in the home for the rest of their life (or until they choose to sell, remarry, or cohabit). This is more common in cases involving older couples where there are no dependent children.
What If the Home Is in One Person’s Name?
It does not matter whose name is on the title deeds or the mortgage. On divorce, the court has the power to transfer or sell any property owned by either party. Even if the home is solely in your spouse’s name, you may still have a strong claim to a share of its value.
Similarly, if the home is in joint names, this does not automatically mean a 50/50 split. The court looks at the whole picture.
The Importance of Getting a Consent Order
Whatever you agree about the family home, it is essential to have it recorded in a consent order approved by the court. Without this:
- The agreement is not legally binding
- Either party can make further financial claims in the future — even years after the divorce
- You have no legal mechanism to enforce the agreement if the other party does not comply
We always advise our clients in Enfield to obtain a consent order, even if the split seems straightforward and amicable.
Practical Steps to Take Now
If you are facing divorce and are concerned about the family home, here are some practical steps:
- Get a property valuation: Obtain at least one (ideally two or three) estate agent valuations so you have an accurate picture of the property’s current market value.
- Check the mortgage: Find out the outstanding mortgage balance, the monthly payments, and whether the mortgage is portable or transferable.
- Understand your equity: Your equity is the difference between the property’s value and the outstanding mortgage. This is the amount available to divide.
- Do not move out hastily: Leaving the family home does not mean you lose your claim to it, but it can make practical negotiations more complicated. Take legal advice before making any decisions.
- Seek legal advice early: The sooner you understand your options, the better positioned you are to make informed decisions.
How Adel Jibs & Co Can Help
Our experienced family law solicitors in Enfield can advise you on all aspects of dealing with the family home in a divorce, including negotiating a fair settlement, obtaining a consent order, and — where necessary — representing you in court proceedings.
Contact us today on 020 3417 3859 or email info@adeljibssolicitors.co.uk for a consultation.