Are there children involved?
Every divorce is different, so there is no hard and fast rule that will apply in every situation. One particularly important factor when deciding who keeps the house when you get divorced is whether there are any young children. The Divorce Court will always prioritise the needs of dependent children. The children’s needs come first. So if there is insufficient money to make two houses from one, for example by downsizing, then the parent with the primary day-to-day care of the children is in the stronger position.
If you are the primary day-to-day caring parent, then it is advisable NOT to move out of your home without first speaking to a specialist divorce solicitor; unless there are personal safety issues involved.
Orders the court can make
The family home is regarded as a marriage asset. In the same way that pensions and other assets can be divided up, irrespective of the source of the funds, the family home can also be divided up, transferred or sold to release equity to enable both spouses to purchase separate homes.
If re-mortgaging is not an option, then it may be appropriate to consider a postponed order for sale. There are two types of deferred orders for sale:
- A Mesher Order
- A Martin Order.
What is a Mesher Order?
A Mesher Order is a deferred order for sale which a divorce court will sometimes make where the sale of the family home is temporarily postponed. The trigger event for a sale might be an ex-spouse remarrying or cohabiting or when the youngest child’s full-time education comes to an end. Mesher Orders are often criticised for simply delaying the decision about who gets the house when you divorce until a later date.
What is a Martin Order?
A Martin Order is similar to a Mesher Order and is used when there are no dependent children. The case from which the name derives was decided in 1978 when the Court of Appeal allowed an ex-spouse to remain living in the family home until their death. This meant that the other ex-spouse’s interest in the property was postponed until after their death. In this case the non-occupying spouse had no immediate need of a capital sum and it was considered appropriate for them to wait for their capital because they already had sufficient money to rehouse themselves.
How we can help
If you are experiencing a marital breakdown and want guidance on who keeps the house when you get divorced then give us a call on 0333 888 0404 or email us at [email protected]
We have offices throughout North Devon and Somerset and offer a range of flexible funding options for people who are seeking a divorce or need legal help dealing with the financial consequences of the marriage breakdown.
