As a divorce lawyer, I am asked the question ‘’who gets the house in a divorce?’’ an awful lot. It is a perfectly reasonable question to ask your family solicitor and one that I would want to ask straight away if I was about to embark upon a divorce.

It can be frustrating for both family lawyer and client if the solicitor can’t answer the question ‘’who gets the house?’’ at a first meeting. Sadly solicitors have a bit of a bad reputation for not answering a question with a straightforward reply but that’s not because they don’t want to answer but often down to needing more information before being able to give an informed legal opinion.

What information is needed to answer the question “who gets the house in a divorce?”

A lot of the information needed is pretty basic but not everyone knows all the answers at a first meeting with a divorce solicitor:

  • How much is the house worth – this can be your estimate;
  • Is there a mortgage? If so how much is outstanding on the mortgage and how much does the mortgage cost each month;
  • Is there an endowment policy linked to the mortgage? If so how much is the endowment worth;
  • Are there any other loans or debts secured against the house;
  • Did any family members lend or give you money to help buy the house;
  • Was the house owned by you or your spouse before you got married;
  • Do you have a prenup or postnup (after marriage) agreement in place that says how your property will be split on divorce;
  • What other property, savings, pensions and investments do you and your spouse own and what do you both earn;
  • How much do you both need to spend if you were to each buy a new house? The answer may depend on whether you or your spouse will be looking after the children full time or if one of you plans to move out of the area.

What happens if I don’t have the information to answer the question “who gets the house in a divorce?”

The main thing to remember is that you are not alone. Lots of people are in the same position and don’t know the value of investments or what sort of mortgage they have or the amount outstanding on the loans. This can be the case whether or not you own property and investments with your spouse or the family home and all the investments are held in one spouse’s name.

If you can’t get this information your divorce solicitor can help. If you are worried that your spouse hasn’t given you all the information and paperwork that you need or you are concerned that he or she has hidden investments or not told you about extra bank accounts your family solicitor can carry out investigations to make sure there is full financial disclosure.

Is it pointless seeing a divorce solicitor until I have all the information I need to answer my question “who gets the house in a divorce?”

Not at all. If you are thinking about splitting up it is never too early to take legal advice to explore your options. Why? Seeing a divorce solicitor isn’t just about sorting out who gets the house.  You will also need to explore and get advice on childcare arrangements or, if you are planning on getting divorced, who should start the divorce proceedings and the timing of the divorce. Getting specialist legal help at an early stage in your separation can pay dividends as it can reduce conflict by helping you both understand your legal options and save money by reducing potential areas of conflict.

Seeing a solicitor for an initial consultation and review may not be as expensive as you might fear and in the long term could save you a lot of stress and fear of the unknown legal territory.

At Evolve we believe in providing trusted advice for a transparent fee. Knowing how worrying it can be to meet a divorce solicitor for the first time we offer a comprehensive initial review of your situation for a fixed fee.

At that meeting we can explore your personal circumstances and what information is needed to help you come to an informed decisions on what will work for you. Sometimes people automatically think they want to keep the house but after they have had time to reflect they realise they either want a fresh start or want to release cash. What is right for you and your family is different to the next couple. That is why bespoke early advice is needed so you don’t get railroaded into quick decisions about your long term family future.

So, who does get the house?   

Well often the answer lies in what other assets there are and choices and priorities. If you want the house it may mean that you don’t get to share in your spouse’s pension. That is why it is so important to know how much everything is worth before making a decision on who gets the house. Often I will meet a husband or wife who will say that their spouse has said they can have the house. That sounds great, maybe even generous, but when you explore the fact that the spouse’s pension is worth 5 times the equity in the house or that the spouse won’t be able to actually be able to afford to stay in the house because of the running costs or won’t be able to persuade the mortgage company to let them take over the mortgage then getting the house doesn’t seem such a great deal.

As frustrating as it may sound sometimes it pays to reflect and take your time to decide on who gets the house. That way, if you do end up with the family home, you can be sure that it is a fair share of your family wealth.

For advice on any aspect of family law please call me on +44 (0) 1477 464020 or email me at [email protected]