Who gets the house? A guide to dividing real estate After A Split

A common burning question following a divorce or separation is ‘who is entitled to the family home’?

Whether you are splitting up from a partner or divorcing your spouse, this article looks at where you stand in terms of rights to your home and how you can make good decisions for the future. 

Your home if you were married 

During a divorce, your joint matrimonial assets will be split. The courts will consider not just your family home, but all the matrimonial assets involved. This will include any other properties, pensions, savings, investments, or other valuable possessions. The courts will also consider the financial needs of any children involved when making a decision on how to divide your assets. In some circumstances, it may be beneficial to both divorcing parties for one to have the home, and the other to keep a pension. 

If possible, it's advisable to reach a mutual agreement with your ex on how things should be split, eliminating the need to go through the court system. This agreement can then be taken to the court who will approve it and make it legally binding. If communicating with your former spouse is not feasible, you can seek support from mediation services where an independent third party will support you both in making an agreement. 

If your case goes through the courts, they will make the decision for you. A judge will look at a number of different factors when working out a split of the family home and other assets, including; the income of both partners, what each partner contributed during the marriage, any debts, the value of the home, the length of the marriage and the welfare of any children. There are no hard and fast rules as to how your financial assets will be divided as every divorce is different. 

What happens to your home if you were not married 

The situation is quite different if you were cohabiting with your partner and living together in your home before you split up. The law does not consider this the same as two spouses living together and cohabitees will not have an automatic right to the property they lived in. Even if you have been together for many years, for example, if you moved in with a partner who continues to own the home and your name is not on the mortgage, then you will not be entitled to a claim on it if you part ways. This is the case, even when you have made contributions towards the mortgage, directly or indirectly through paying for home maintenance costs, for instance. As the number of cohabiting couples continues to rise in the UK, this can leave many people financially vulnerable. 

Cohabitation agreements 

Although the answer for some could be to simply get married to ensure both partners have a legal right to their home, getting married is not everyone's first choice. A cohabitation agreement is a legally binding agreement between two people about what happens to their home and potentially other financial assets should a couple split up and is similar to a post-nuptial or prenuptial agreement. You can have a cohabitation agreement at any point during your relationship, but if this is what you have decided, it's advisable to get one early on, ideally before you move in together. 

Conclusion 

Thinking about your finances is always a wise move before you move in with your partner and before you get married. Consider whether a prenuptial agreement would be beneficial or whether you need a cohabitation to protect you from a potential financial conflict over your family home if you were to split up. While it's certainly not romantic, it could be a move that you later thank yourself for.