Who gets the house after a divorce?

For most of us, the family home is often the asset with the greatest financial value.

Not surprisingly, it’s also often the main sticking point in divorce proceedings.

So, how does the law decide who gets the family home?

The law

The starting point in law is equality. This doesn’t necessarily mean that everything is split down the middle. Each of your assets (including the family home) are pooled together. This is known as the ‘matrimonial pot’. The job for the courts is to then split that pot across both parties fairly.

What is fair? Judges will apply something known as the ‘section 25 factors’. These will include:-

  • children – the welfare of any child under the age of 18;
  • health of parties – any physical/mental disability that either of you suffer from;
  • financial needs – what each of your needs and financial obligations are now, and what they’re likely to be in the future.
  • standard of living- enjoyed by the family before the breakdown of the marriage

Each case is assessed on its individual circumstances/merits, and with the aspiration of creating fairness for both parties. Housing is just one part of that picture, albeit an important one. And, if the matrimonial pot won’t stretch far enough, the courts may have no choice but to order that the family home is sold, to make way for two smaller properties.

Process for agreement

Who gets what (the house included) can be agreed by ‘consent’. There are various ways you can do this:-

  • between you and your spouse
  • through solicitor negotiations
  • via a mediator (a professional, neutral third party)

For any agreement (by consent) to be binding, it must go before a court for approval.

Can’t agree?

If you are unable to agree, then it will be for the court to decide for you.

You must attend a mediation session (known as a ‘MIAM’) before the court will allow you to make an application.