What happens to the family home on divorce will depend on a number of factors, including the following:
1. Is the house matrimonial property?
The family home will form part of the matrimonial property if it was bought before the marriage with the intention that it would become the family home, or if it was purchased during the marriage.
The starting point in every case is that there should be “fair sharing” of the value of the net matrimonial property between spouses on divorce. The default position is that “fair” means “equal”, i.e. a 50:50 split.
2. Does ownership affect who keeps the house?
No. Neither spouse has a priority to retain the family home, and either may seek to do so.
3. Can one party afford to keep the house?
If there is a mortgage over the property, and there are no available funds to redeem it, the party wishing to retain the property will need to check whether a lender will approve them taking on the borrowing in their sole name and whether they can afford to meet the monthly repayments from their income going forward. They may also need to raise funds to buy out their spouse’s interest in the property.
4. Can I keep the house if my spouse keeps their pension?
Yes. Equal sharing of the matrimonial property does not mean that every individual asset is split down the middle, but that an overall arrangement is agreed which has the effect of you each retaining a half share of the total net value. So, for example, spouses may agree that one keeps the family home in exchange for the other spouse retaining their pension.
5. Can we defer the sale whilst the children finish school?
Yes. Spouses can agree to defer the sale until a future date. This is often attractive where children are involved, as remaining in the home can provide stability during a period of uncertainty.
The law in Scotland seeks to achieve a "clean break" between spouses on divorce, so a court would not usually order a deferred sale of the family home following divorce. A deferred sale can therefore often only be achieved through agreement between spouses.
6. Can I be forced to leave?
A spouse can only be forced to leave the family home if a court grants an exclusion order before divorce. Exclusion orders are made only in limited circumstances where it is necessary for the protection of the other spouse or any children.
Common Mistakes to Avoid After Separation
Some of the most common mistakes include:
- Moving out of the family home too quickly. Running two households is more expensive and can place both parties under significant financial pressure at a time when legal costs may also need to be met.
- Not considering affordability fully. Can you afford the existing mortgage on your income alone? Would a lender be willing to transfer the mortgage into your sole name?
- Focusing only on keeping the house without giving proper consideration to pension provision and longer-term financial security in retirement.
Why early expert advice makes the difference
Understanding your rights at an early stage can make a significant difference and help you make informed decisions during what is often a very difficult time.
How MFMac can help
We can advise you on your rights to remain in the family home following separation and on what an overall financial settlement may look like, including the possibility of retaining the family home. Being informed can help you avoid costly mistakes at an early stage. We can support you in securing a fair financial settlement that reflects both your immediate and long-term financial needs.
Contact us today for expert advice and peace of mind. Our fixed-fee initial meeting will help you understand your options quickly.
