Deciding on housing arrangements
It is impossible to say decisively at the outset of a divorce or
dissolution who will get the house. With details of your circumstances
your solicitor can give you an informed opinion as to the division of
If you and your partner can't agree on who will get the house, or any other asset, the court can be asked to decide this. It is the Judge's job to apply a test of fairness.
There are no hard and fast rules as to who gets what but the Judge will look at a number of different factors:
- Given that the needs of any children are the first consideration it will be important to make sure that a suitable home is maintained for them. This doesn't necessarily mean that the parent with the day-to-day care of the children will keep the house. Where there is insufficient money for both households, courts can take into account the fact that the non-resident parent will need somewhere large enough to allow them to have the children to stay overnight.
- It may be that the family home can be sold with the proceeds divided between the couple (not necessarily in equal shares) allowing both to re-house suitably.
- Alternatively, the property could be transferred to one person with the other perhaps receiving a greater share of the assets.
- A less common approach would allow one person to stay in the house with the other keeping an interest in the property, receiving their share at a later date. This might be when the youngest child has finished full-time education.
If you and your partner are renting under a joint tenancy and are unable to agree between yourselves who will get the house or flat, the court will consider factors such as the needs of any children, your respective housing and financial needs, the circumstances in which the tenancy came about and your suitability as a tenant. If a right to buy has been acquired, this will be taken into account.
- We rent under a joint tenancy - who will get the house/flat?
- I have no income apart from maintenance and tax credits-can I get a mortgage?
- How much can I borrow?
- If my spouse has to remain on our mortgage, will that affect their future house purchase elsewhere?
- Should I visit various mortgage companies and see what they can offer me?
We rent under a joint tenancy - who will get the house/flat?
If you aren’t able to agree between yourselves, the court will consider factors such as the needs of any children, your respective housing and financial needs, the circumstances in which the tenancy came about, and your suitability as a tenant. If a right to buy has been acquired, this will be taken into account.
I have no income apart from maintenance and tax credits-can I get a mortgage?
On the whole, most lenders would expect you to have some form of earned income prior to allowing any form of borrowing, because clearly you need to be able to pay back what you owe. In addition, not all forms of income are fully taken into account by mortgage companies. Some lenders will only accept maintenance if there is a consistent payment track record of at least 6‐12 months (and possibly a Court or CSA Order), and only a percentage of tax credits may be allowable against borrowing.
How much can I borrow?
There are no set criteria, and each lender has their own limits. In order to secure the better mortgage interest rates, a deposit of at least 20%‐25% is needed. In addition, if you are self employed, you ideally need to present 2 or 3 years accounts, however good your cashflow may be.
If my spouse has to remain on our mortgage, will that affect their future house purchase elsewhere?
Yes, all existing borrowing, whether on a mortgage, credit card or loan is taken into account by a mortgage company, and could reduce future lending.
Should I visit various mortgage companies and see what they can offer me?
By all means, do your own research, however the mortgage market changes frequently. Be wary of requesting “Approvals in Principle” as these are only valid for a short period of time and can leave a footprint on your credit history. Too many checks within a short timescale could adversely affect your credit score.