When settling finances, this is usually one of the toughest assets that many people find hard to decide on. This section, to make it easy for everyone is divided into if you have children and if you don’t have children.
1. If you have children.
Your children’s welfare is the most important thing that needs to be considered. In many cases, most assets usually go towards providing a home for your children. The main priority will be that the parent who has the most custody over the children will usually be given somewhere to live – this must be suitable for the children. The other parent, however, will also be considered especially in shared custody as at times, the children will go over to live with them – similarly, their property has to be suitable.
If you or you and your ex own a family home (including if you’re still paying mortgages), this will mostly be the most expensive asset and this needs to be divided. If you have agreed to keep the house because you and your child is to stay there, then you must be able to keep up with mortgage payments and this can be achieved through maintenance payments (but note that this is dependent on fairness and factors such as income will be considered). Also, be cautious that If one of you wants to keep the existing home and mortgage, you need to find out whether the mortgage company will agree to this. You also need to check whether they will release the other one from any further responsibility for the mortgage.
Although it may seem unfair that the parent who does not get to keep the family home still has to pay maintenance, a Mesher order can be used. This order gives a percentage share of the value of the family home to the parent who does not get to keep it. This will be paid to them at a specific time in the future.
For example, when your youngest child finishes education (either school or college/university). You can add other ‘trigger events’ so that if, for example, the parent who remains living in the family home remarries or cohabits permanently with a new partner (normally defined as living together for over 6 months) or dies, then the parent who has left the family home will get paid their share. Mesher orders need very careful drafting and you will need a solicitor for this.
If the house is rented, you can take over the tenancy agreement and a judge will aid in transferring this. Similar circumstances will be considered.
If the family home is to be sold and the value is to be distributed. The welfare of the child again must be considered. Will the new houses that parents live in be suitable? For example, is it near the school? Are there enough funds for rent or mortgage payments? You can find out how much housing benefit you may be entitled to (to help pay the rent) at Housing benefit (England, Scotland and Wales).
The standard of living you enjoyed during the marriage is a guide to the standard of housing you may be able to expect in the future. But in practice, what is just about enough to keep one family going is often not enough to provide adequately for two households. So it may be impossible for that standard to continue. If your standard of housing has to reduce, then ideally that should not affect one of you more than the other. Again in practice, if you have children, then their needs may mean that the parent they don’t live with most of the time has to make do with a lower standard of accommodation.
If either of you or your children has a physical or mental disability or ill-health, then this may impact your housing need. For example, if the family home has already been adapted to meet the needs of a disabled family member, then, if it’s financially possible, it may make sense for whichever one of you is disabled or cares for the disabled family member to keep the home.
2. If you do not have children.
If you and your ex own the family home, this will usually be sold and the proceeds divided based on how much each has contributed to the home. If however, one of you wants to remain in the home, an agreement to pay for the home to the other party’s total amount contribution can be agreed upon. This will be depended on fairness and what is agreed upon. If for example, a wife has not worked for years and made no contribution financially to the home, she is still entitled to a share if she can show that she has contributed to the general upkeep of the home and her partner. Cooking and taking care of another so that they can work is also counted towards contributing to the family home. If this is a rental home, it can be decided by both parties to who the rent will be transferred.
Maintenance payments can still be requested if one party may find it difficult to find a job or has other circumstances that stop them from being able to afford rent or food. For example, if a partner has a disability, maintenance payments may be in order, depending on how much this affects a party’s ability to live. The standard of living you enjoyed during the marriage is a guide to the standard of housing you may be able to expect in the future. If this is threatened too much, maintenance again will come in handy here depending on circumstances.
Please note that the advice given above is how two parties who intend to resolve a divorce together should consider. It is also how a judge will consider this in those circumstances.
3.25