This blog is written by a third-party guest author to help provide additional insight and perspective. The author is Backhouse Solicitors.
During a divorce or dissolving of a civil partnership, there is an enormous amount for couples to consider, negotiate and agree before going their separate ways. This typically includes arrangements for the care and support of any children, division of assets and shared property and making a financial agreement for the future. As part of this process, there is often a need to downsize the family home to two smaller properties so the parties can go their separate ways.
When considering the downsizing process, at Backhouse Solicitors we find that our clients often have similar questions. As a result, we’ve compiled a list of the eight most frequently asked questions into a handy “What if” guide to help others in a similar situation.
Q1 – What if… I want to keep the family home, but my ex-partner wants it to be sold? Can they force me to sell the family home so that we would both need to downsize?
The negotiations during the divorce settlement will determine whether it is possible for you to retain the family home. If the court ultimately orders it to be sold, you will have no option but to abide by the ruling.
Q2 – What if… One person holds on to the family home and, as a result, the other (downsizing) partner needs a new and potentially much more expensive mortgage. Is there anything that can be done to avoid this or is it just something to be mindful of?
As with any property purchase, if a mortgage is required it will be down to the individual to seek the best mortgage deal available for the transaction. However, the downsizing partner may request an increased financial settlement within the final order to take this into account, depending on the circumstances.
Q3 – What if… I am planning to downsize – should I tell my ex-partner?
It is up to you whether you choose to disclose the details of your plans to downsize. However, if it impacts on a future court order that will be made, you will need to tell your solicitor, who will provide your financial information and plans to the court so they can take it into account.
Q4 – What if… We have agreed that we will both downsize, how quickly can this happen after divorce? How soon can we start searching for a new property?
As with any property sale or purchase, this one is going to be a combination of luck, hard work and judgement! You can start looking as soon as you have agreed, but you will both need to find the right property, which normally starts with looking at one of the online portals like Rightmove and visiting estate agents. However, if the downsizes are reliant upon the sale of the family home, you will not be able to proceed until you have a buyer for your current property. It is likely that you will have two sets of purchase and sale chains to contend with and once the legals are in progress it is likely to take at least three months to complete them.
Q5 – What if… I receive financial support for our children from my ex-partner and I intend to use this towards a new mortgage. What do I do if my ex doesn’t actually pay what they are supposed to?
It is important to get any financial arrangements in writing at the time of the Final Order for your divorce (previously called the Decree Absolute). It may be possible to use this income in the affordability calculations for a new mortgage application; however, the responsibility for the monthly mortgage payment would still be down to you. We recommend that you ensure you can afford the payments each month even if your ex-partner refuses to pay.
It is possible to make a claim to the court if your ex-partner breaches the Final Order. However, this could be a lengthy process and your new home could be at risk if you do not keep up with the mortgage payments on it. There is also a legal requirement for the non-resident parent to pay maintenance and this is dealt with by the Child Maintenance Service if an agreement cannot be reached between the two parties. You should take legal advice on your particular circumstances if you do not receive payment.
Q6 – What if… The agreement is for both parties to downsize – are there any particular hurdles to overcome when buying a property after a divorce?
If you have both agreed to downsize, you can follow the traditional path of buying a house, regardless that you are a divorcee. There are no particular hurdles to be aware of, other than the usual challenge of ensuring the affordability of your new property as a sole purchaser. Remember that the purchase costs are not just the house itself but also the costs of purchase (legal fees, searches etc), the costs of moving and the Stamp Duty.
Q7 – What if… It has been agreed by both parties that we will be downsizing, at what point can I start getting rid of clutter? Do I have to check with my ex before disposing of household items and furniture?
If you are both in agreement that you will be selling the family home, you can start the decluttering task straight away as this can also help with selling the property. It is best if you can decide between yourselves what items can be disposed of, as it will be more expensive if there are arguments between your solicitors about who gets or keeps what items. Which leads us to our final question…..
Q8 – What if… We cannot agree who gets what items or furniture from the family home and we both want the same things?
If there are particular items or furniture that you both would like to keep and you cannot negotiate and agree between yourselves, it would be advisable to raise this with your solicitor in your divorce settlement. If there are specific items of sentimental value then try to agree on these in advance of any court hearing. If an agreement can’t be reached then ownership can be determined by the court BUT the court does not like to get involved in disputes over belongings.
It is no secret that the divorce process can be stressful and upsetting for all involved, and choosing to downsize or having no option but to downsize is part and parcel of this change and the next chapter in your life. At Backhouse Solicitors we like to help our clients turn this potentially daunting experience into a fresh start. If you would like further advice about a divorce or have some ‘What if’ questions of your own then our team of friendly Family Law solicitors are here to help. Likewise, if you are selling the family home and looking to downsize, our expert Property team can help with your conveyancing and will make every effort to make the process run as smoothly as possible.
Chelmsford-based Backhouse Solicitors is a family-owned firm of specialist, problem-solving solicitors who pride themselves on offering friendly and easy-to-understand advice.
Publication of information from third party guest authors does not constitute an affiliation with, nor a recommendation. If you require further information on this topic we recommend you seek specialist advice.
