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Buying a House After Divorce Or Separation

Going through a separation or divorce can be a very difficult time, with lots of emotions and complexities involved. 

One thing that many people question is where they will live next, and when is the best time to make the move. Whilst waiting for a divorce to finalise, you might have found the perfect home to start over in. A new place to gain your independence in. 

But, before the court has decided on the division of marital assets, it might be wise to hold off before buying a new house.

 

​Should I buy a new property before my divorce is finalised?

Divorce proceedings can take just a few months if everything is agreed on, although, they can drag out for years if there are arguments about the dividing of property and possessions.

There is always a period of time between the divorce being filed and the divorce being finalised. During this time, the court’s decision on the division of your marital assets and finances has not yet been finalised.

Buying a new house after separation, but before divorce, can therefore be a risky decision to make. If you are considering buying a new home, it’s advisable to first make sure you know your rights before moving on to the next phase of your life.

Buying a new home before a final order has been made could mean that the court take the value of that house into account when deciding on how to divide your marital assets. Anything bought during the marriage, which does not end until a final order is issued, is classed as a marital asset. This means that your ex-partner could put forward a claim for the value of your newly acquired property.

In most cases, you should not buy a house until your divorce is finalised. This way, you will be able to live much more comfortably with a better assurance of your financial situation – and also put behind any stress of your divorce more easily.

 

Consider what is right for you and your family

Leaving your house is, for many, one of the biggest and most significant steps throughout the whole divorce process. Often people are worried who gets the house in a divorce, and rightly so! Whether it’s due to the fact that tensions are running high with your spouse or you don’t want your arguments to impact your children, it’s important that you really think about whether moving out of your home is the right thing to do. Moving back into the marital home is often, emotionally at least, a very difficult decision.

Sometimes, it’s necessary for couples to live apart in order to get that breathing space that could give the negotiations surrounding the financial settlement the best chance of success. Other times, one party moving out serves to heighten tensions further.

Above all, deciding whether the time is right to leave your house is a very personal decision and it’s important to consider what is best for you and your family.

 

The Divorce Process

When buying a house while getting divorced, it is good to understand the details that could affect your decision. During a divorce, three applications will be made to the court. These involve:

  • The divorce petition, which shows the reason for getting a divorce
  • The decree nisi gives notice that your divorce is soon to be finalised and allows the opportunity to raise any objections
  • The decree absolute completes the divorce

Most divorce solicitors will advise you not to apply for the decree absolute, or buy a house until you have settled your finances. Usually, couples do not divorce for a considerable amount of time after their separation, so there might be some time to wait until buying a house after separating.

For a full breakdown, read more about the full divorce process.

 

What To Do With Your Current House After Divorce

Before thinking about where to move next, there are important considerations to make about your current home first. Having certainty on what is happening with your current home will help you make a better decision moving forward with your new home. 

First, decide whether you will:

  • Sell the marital home and both move-out
  • Have one spouse buy the other one out
  • Keep the home and decide which spouse should live in it
  • Transfer the property from one spouse to the other. The spouse who gives up their ownership rights will still keep an interest in the home and receive a percentage of its value once sold in the future.

To ensure you are making the right decision, it is strongly advised that you wait to buy a new property until after your divorce is final and a financial order is made. This way, your ex-spouse cannot claim rights to the value of your new home at a later date. 

It’s vital to know your rights to property after separation, as this will help you make a more informed decision on your next steps. 

 

Can my spouse sell the house when I’m gone, before we get a divorce?

If your house is in joint names, your spouse can’t sell it without your permission.

If your house is not in joint names but you are occupying the house, the legal owner of the house will not be able to sell it free from your claims. 

Obviously, if you no longer reside in the house, it could be that you are no longer protected by this rule. As such, it’s important to make sure you have legal protection by registering your rights.

 

Where to Live During Divorce Proceedings

During the divorce process, many couples feel more comfortable living separately rather than together in the marital home. Because of this, it can be difficult to figure out where to live during divorce proceedings. 

Whilst there is the option to continue living in your marital home, it’s important to consider whether your spouse will live there too and whether you are both comfortable with that. 

If you do plan to remain in your home, yet your spouse is the one that owns the home, you can register a notice of home rights. There is no cost to register, and it is extremely important to do this to prevent the sale of the marital home without your knowledge.

By doing this, you can protect yourself by maintaining your living situation until you are further along in the divorce proceedings.

Also, this is not the time to rock the financial boat. It is important to keep your financial circumstances as motionless as you can. It is not advisable to continue building more equity that your ex could potentially make a claim for. Stay in your current home if it is at all possible.

If remaining in your marital home is not an option, there are many alternatives available:

  • You can rent a furnished property
  • You can rent a property temporarily with minimal furnishings
  • Consider long-term storage of your possessions to keep them safe

 

Are you planning on living with a new partner?

Deciding when or if to leave your house can be one of the most difficult decisions you will have to make during the divorce process. Speaking to an experienced divorce solicitor can help you to ensure that you are making your decision with all of the facts at hand.

 

Best Practices for Buying a House While Getting Divorced

If you do decide to buy a house while getting divorced, there are certain processes you should follow in order to minimise your risks. This should be a very carefully weighed up decision, as there is no way to completely rule out the risks posed to your finances and assets.

Ensure that all documents are signed and dated in your name, and your name only. From the start of the property buying process and throughout, it’s important to sign all documentation in a way that does not involve your ex partner.

Do not use funds from a marital joint account to buy a new property. Use separate funds to cover every cost. If you do not own a separate bank account, you should create one to avoid the risk of your ex partner having partial rights to the property.

You should also request a written legal property agreement from your ex partner that outlines your sole ownership of the new house. This will help clarify that the new property is yours, and yours alone. 

If your ex partner rejects your request to sign a legal property agreement, this could be a bad sign that they are seeking partial ownership of the new property. In this case, you should certainly wait until after divorce before buying a house.

 

Speak to a Divorce Lawyer

At Austin Kemp today, our divorce lawyers have years of experience with divorce and family law cases. We help you protect the assets you have acquired with expert legal advice. 

We can make sure you have everything you need to go forward confidently in your new life, and eventually your new home. Find local divorce lawyers with us today.

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07th January 2022

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