The Question
My husband and I have decided to separate but we are still living in the same home whilst we decide how to proceed. We have two children who are seven and 10.
I would like some expert advice on where I stand financially. We bought the house together when my youngest was a baby and because I am a stay-at-home parent, I’ve never contributed to the mortgage or the deposit. The mortgage and house is in both our names, however.
I’m worried because I have had no financial input, I won’t be entitled to anything when we divorce. I am anxious about how I will manage financially and whether I’ll have any rights over the home.
Ideally, I’d like to stay in the home with my kids but until I understand a bit more about where I stand legally, I’d rather not broach this with my husband.
I have no form of income and rely solely on my husband. I’d be grateful for any advice.
Anne-Marie’s Answer
Firstly, please don’t worry that your rights over the family home are in any way linked to your financial contributions. The Court see your marriage as a partnership. It does not matter if you have not contributed as much financially as your husband.
You have looked after the children and the home. This in turn made it possible for your husband to work and pay the mortgage.
When considering the length of your marriage the starting point is normally a 50/50 division of all matrimonial assets. It is important to note that in many cases one party may receive more than 50%.
Whether you will be able to stay in the family home will depend on the following:
1. Will you continue to be the children’s main carer?
The Court when considering how to divide the family assets will give first priority to housing any children under 18 and by extension their primary carer.
If you will be their primary carer, the Court will prioritise your housing needs over your husband’s, at least until your children reach 18.
If you and your husband will share care of your children, then your housing needs will be the same so your housing need wouldn’t be prioritised.
2. Will you be able to afford to pay the mortgage and bills once divorced?
The Court will want to ensure that you remaining in the property is a viable, practical proposition. This can include child maintenance agreed or paid via the Child Maintenance Service. You may also be entitled to spousal maintenance to assist you.
Do note however that this is generally only paid as a short-term measure to allow you to have time to retrain if necessary and re-enter the workplace. You may need to look at working part time to earn an income which could be used for mortgage purposes.
3. Are you over housed?
If you are living in a large property which is surplus to your needs and if you can house locally for a lot less, then the Court may expect the house to be sold. This would release money to your husband for his share of the equity.
If you are living in a modest two- or three-bedroom property and little equity would be released if you sold your current home and moved to another property locally, the Court will see the benefit of you remaining in your current home and saving the costs of moving in terms of legal fees, estate agents, stamp duty and moving costs.
4. Are there any other matrimonial assets which your husband can take?
This could include, for example, pensions, shares, investments or second properties – anything which could enable you to offset your claim to these assets and keep the family home.
If your other assets do not allow for this, you can agree with your husband that his share is deferred to a later date. You would continue living in the current property until a pre-agreed event has occurred such as your youngest child turning 18 or your remarriage.
At that stage you would then sell the property and the proceeds are then divided as agreed. You could include an option that you have the ability to buy out your husband at that point if finances allowed.
The mortgage – what to consider
Do also note that even if a Judge makes an order that the home is transferred to you, a mortgage lender cannot be forced to remove your husband’s name from the property. If you are not working, a lender will not agree to this.
However, you can agree that the property remains in joint names and that you continue paying the mortgage in the meantime.
You could consider asking a family member such as a parent to make a joint application for the mortgage to remove your husband’s name which would enable him to purchase another property.
You will appreciate that there is a lot to consider and everyone’s circumstances are different.
As such we always recommend that you consult a specialist family adviser at the outset so we can explore options that are right for you and your family.
Anne-Marie Smith is a family law solicitor at Parfitt Cresswell
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