The house that a couple live in during the marriage is known as the matrimonial home in divorce proceedings. Whether the property is owned by the couple jointly or it is owned by one of them, neither of them have an automatic right to keep the property as part of their divorce settlement.
The matrimonial home is one of the assets that will fall into the matrimonial pot that will be distributed between the couple as part of their divorce settlement. A value will need to be attributed to the property within the divorce. If the couple cannot agree a value it will have to be valued by a surveyor, who is usually appointed jointly by the couple.
The housing needs of any young children (under 18) will be the primary concern of the court. If the assets are limited, the main carer of the children will often keep the matrimonial home, and the other spouse will have to use what is left of the assets to buy a property for themselves, even if this means that they are unable to buy a property of a similar value or are even unable to purchase another property immediately.
It should be noted that if there is a mortgage secured upon the property, the mortgage company will have to agree to the mortgage and the property being transferred to one spouse, if it is owned by the other spouse or it is owned by them jointly. If the mortgage company does not agree to this, it would leave one spouse responsible for a mortgage for a house that they are no longer living in and it will impact their ability to borrow money to fund the purchase of a property for themselves. In this scenario the house will usually be sold, unless it is the only way of meeting the housing needs of the spouse who is the main carer of the children. If this is the case, there is usually an order for sale of the property when the youngest child becomes an adult, with both spouses sharing the equity at that stage. This is known as a Mesher order.
Unless there are limited assets, most judges will consider that both spouse’s housing needs are the same. Therefore if the children live with one parent for most of the week and see the other parent at weekends, a judge will say that the housing needs of both spouses are the same. It is considered best for the children if they are able to have the same facilities at both houses, for example their own bedroom, if there is sufficient money to afford this.
Often the house is the most valuable asset that the couple own. If the equity in the house (its value less any mortgage secured upon the property) is significant and there are few other assets, the house may have to be sold to allow both spouses to receive their fair share of the matrimonial assets. This would enable both spouses to purchase less expensive properties.
If either spouse can afford the keep the matrimonial home and they both want to keep, if the children live with one spouse more of the time a judge is likely to say that that spouse should keep it. If there are no young children, a judge would be more likely to sell the house in this scenario, so that neither spouse keeps it. Whilst many who divorce are concerned about what will happen to the matrimonial home, in most divorces the couple agree what should happen to the property.
