A client whose relationship has come to an end will invariably ask me whether they able to stay in their home. The question is usually raised in my first meeting with the client, a time when it is almost impossible to give an answer without clarifying a few points.
What equity is left in the house?
The question raises all sorts of issues and a good starting point is to look at the equity in the house. The equity is what is left over after the house has been sold, the mortgage paid off and estate agent and other professional fees paid. It is important to find out whether there is sufficient equity left over to enable both parties to buy their own property? This may in turn depend upon their mortgage capacity, so might need the involvement of a mortgage advisor to clarify the position.
Are there children involved?
A Court will look at whether there are any children involved and if so, who the children will be living with – after all, the property is the children’s home as well as that of their parents. The ages of the children might be relevant, as are factors such as whether they have important exams coming up. In such circumstance, it may be judged by the court that it is in the best interests of the children to remain, with a parent, in the family home for a defined period.
The Court will attempt to strike a balance between the two sides. Assuming the children are staying with the parent that is remaining in the family home, if the property is not sold, can that parent then afford to stay in it? If so, is a contribution needed from the absent parent and, if so, is the absent parent in a position to afford to pay that as well as sort out their own expenses? They are entitled to live somewhere else and still make ends meet.
Is this a long or medium-term arrangement?
If such an arrangement is put in place, it is important to consider is how long the other parent might then have to wait for them to buy again. After all, if you are tied to one mortgage it can be difficult to get a second. Again, the ages of the children are relevant to this question, if a child is aged around two or three then a Court might be more inclined to postpone the sale for that period of time than if the child is aged 10 or 15 years. A Courts prime concern when looking at this will be to try and provide a secure roof over any children’s heads.
Considering the options
It is important to bear in mind that there are not just legal and factual points to consider when someone asks whether they can keep their house after a divorce. If you are in this position you should also be asking yourself ‘Do I really want to stay in the house?’ It can be a security issue, everything else around you is changing and you want to hold onto the house as the place that you are familiar with and feel at home. There can be an emotional investment in the property.
Some people will feel that they are surrounded by memories, both good and bad of their relationship with their soon to be former partner. Added to the fact that it is possible the absent partner will still have some form of interest in the house if a sale isn’t to take place until the children leave school, this may make staying uncomfortable. Moving elsewhere can be a new start and can make it easier to move on - if it is affordable.
Also, if you do retain the family home, this might require a trade off in respect of some of the other assets of the relationship. Again, every single case is determined on its own facts but it might mean foregoing a claim against, say, pensions in order to stay in the home. Is that a price that you are willing to pay in in the long term?
Ultimately there this isn’t a simple answer. In the first instance, if you are the one that is having to ask that question, mull over the points I have raised above and discuss with your solicitor. But don’t rush the decision, reconsider it as the process goes on as your feelings may well change and try and look at it with an open mind.
Stephen Root is a top ranked Yorkshire family lawyer with over 30 years’ experience in supported separating couples. To discuss how with Stephen and Berwins' expert Family Law team can support you, call 01423 543 108 or use our online contact form.