Of all the problems in separation and divorce sorting out what to do with the family home causes the most anxiety. The house cannot be looked at alone. It is part of the whole assets and must be listed, valued and fairly divided.
What options are available for the family home?
SELL
A formal legal Agreement will need to be drawn up and signed by the parties to instruct an Estate Agent to act for the sale. A Law Firm should also be appointed in the Agreement. A clause should state that the Law Firm will either (a) distribute the net proceeds in a particular way or (b) retain the sale proceeds subject to the parties either mutually directing what is to happen or obtaining a court order. Beware of any redemption penalty applying to the mortgage repayment. Each party can seek quotations from Estate Agents and Law Firms to act in the sale.
TRANSFER
One party takes over full ownership and buys out the other, which may include a remortgage transaction. This will normally be in the context of a full settlement of all other financial matters involved in the separation. If a remortgage is involved it is important to involve lenders at a fairly early stage to seek mortgage approval. Check out the legal costs involved with the conveyancing.
DEFER SALE
In a situation where there are young children living in the family home the only workable solution may be to put off any sale to a future date, many years in the future. The problem with this can be that one party may be absent from the house, but his/her name is on the title. He/she she may not be able to get a loan to buy another property nor have a deposit. Who pays the mortgage and maintenance costs ?
DISAGREEMENT
It is not uncommon for the absent party wanting to force a sale. Usually the occupier of the house is one of the parent’s looking after young children. Or indeed the children maybe be grown-up but still at university and just want to stay in the family home. On a practical basis how are you going to force a sale? A court order can be sought, but this is expensive to obtain and can be difficult to enforce. How will an Estate Agent market a property when the occupants of the house are uncooperative? The answer sometimes is just to keep patiently persisting. Arrange for Estate Agents to provide a valuation and talk to your Divorce Lawyer about seeking a court order.
If you are worried about what will happen to the family home once you separate, then it’s worth speaking to a member of our Family Law team at Watermans.
We offer straightforward legal advice, and we don’t judge or patronise. We understand the emotions involved in a separation, and that every situation is unique. Call us on 0131 555 7055, or use the contact form below to speak to one of our experts.