Dividing the family home

Who owns the home doesn’t determine who gets it

A common misconception is that whoever’s name is on the deeds or mortgage automatically keeps the home. This isn’t how divorce law works.

Regardless of legal ownership, the family home is usually considered a matrimonial asset that both spouses have claims to. Even if the property is solely in your spouse’s name, you likely have rights to a share of its value.

What matters more than whose name is on the deeds:

• Whether you need it to house children
• Both parties’ housing needs
• The overall financial settlement
• Whether one person can afford to keep it

Your main options

There are several ways to deal with the family home:

Sell and split the proceeds

The most common approach. You sell the property, pay off the mortgage, and divide what’s left according to your agreement (not necessarily 50/50).

Advantages:

• Clean break – you both move on
• Releases capital for both to rehouse
• Simplest to implement
• No ongoing ties to each other

Disadvantages:

• May need to sell in unfavourable market
• Disruption for children
• Estate agent and legal fees
• Both need to find new housing

One person buys out the other

If one of you wants to keep the home, they can “buy out” the other’s share. This means paying them their portion of the equity, usually by remortgaging.

Advantages:

• Stability for children
• One person keeps their home
• No need to find new property

Disadvantages:

• Requires ability to remortgage
• May need to raise significant funds
• The person leaving still needs to rehouse

Transfer the property

The home is transferred entirely to one person as part of the overall settlement. This might happen without a direct payment if it’s offset against other assets (like the other person keeping more pension).

Advantages:

• Can achieve fair overall settlement
• Provides housing stability

Disadvantages:

• The receiving person takes on all mortgage responsibility
• May leave the other without housing capital

Defer the sale (Mesher order)

A court can order that the property not be sold until a future event – typically when the youngest child finishes education or turns 18. Both parties retain a share, and proceeds are divided when eventually sold.

Advantages:

• Children stay in family home
• Defers difficult decisions
• Housing security for primary carer

Disadvantages:

• No clean break – ongoing financial ties
• One person may feel “trapped”
• Property maintenance disputes
• Capital tied up for years

How the split is decided

The division of property equity depends on your overall financial settlement, not a standard formula. Factors include:

Children’s housing needs – courts prioritise ensuring children have a suitable home. The parent with primary care often receives a larger share or the right to stay in the property.

Each person’s housing needs – can both afford to rehouse? Does one have greater needs due to disability or caring responsibilities?

Other assets – if there are substantial savings or pension wealth, the property split might be adjusted. For example, one person might keep more of the house in exchange for the other keeping more pension.

Earning capacity – a lower-earning spouse may need more capital since they can’t easily save or get a mortgage.

Mortgage capacity – there’s no point awarding someone a home they can’t afford to keep.

Protecting your interest

If the property is in your spouse’s name alone, or you’re worried they might try to sell or remortgage without your knowledge:

Register your home rights

If you’re married and the home is in your spouse’s sole name, you have “home rights” – the legal right to live there. Register these with the Land Registry using Form HR1. This prevents your spouse from selling or remortgaging without your knowledge.

Apply for a restriction

You can ask the Land Registry to place a restriction on the property, requiring your consent for any sale or transfer.

Occupation order

If you’ve been excluded from the home or there’s domestic abuse, you can apply to court for an occupation order allowing you to live there.

Practical considerations

Can you afford to stay?

Before fighting to keep the home, honestly assess whether you can afford it:

• Can you get a mortgage in your sole name?
• Can you afford the repayments, plus maintenance, insurance, and repairs?
• Would the capital be better used elsewhere?
• Could you rehouse more affordably?

Keeping a home you can’t afford often leads to financial difficulties or having to sell later anyway.

Impact on children

Children’s needs are important, but stability comes in many forms. Sometimes:

• Moving to a more affordable home reduces financial stress
• A fresh start helps everyone move forward
• Staying in a house with bad memories isn’t always best

Consider your children’s needs holistically, not just in terms of the building.

Timing of sale

If you’re selling, you can agree to delay until:

• The property market improves
• Children finish the school year
• One person finds alternative accommodation

Be realistic though – extended delays create uncertainty and ongoing ties.

Getting the valuation right

You’ll need to know what the property is worth. Options include:

Estate agent valuations – free, but agents may overvalue to win your business. Get two or three and take an average.

RICS survey – a professional valuation from a chartered surveyor. Costs £300-500 but provides an independent figure.

Online estimates – tools like Zoopla give rough estimates but aren’t reliable for settlement purposes.

The equity is the property value minus the outstanding mortgage. Don’t forget to factor in selling costs (estate agent fees, legal fees, removal costs) if you’re calculating what you’d actually receive from a sale.

Mortgage considerations

Removing a name from the mortgage

If one person is keeping the home, the other’s name needs to come off the mortgage. This usually requires:

• The remaining person to pass affordability checks alone
• Remortgaging with the same or different lender
• The departing person to be released from liability

Lenders aren’t obliged to agree to this. If the remaining person can’t pass affordability tests, you may need to sell.

Negative equity

If you owe more than the property is worth, selling isn’t straightforward. Options include:

• Continuing to pay the mortgage until equity recovers
• One person taking on the debt as part of the settlement
• Negotiating with the lender about shortfall

This is complex territory where professional advice is essential.

Reaching agreement

Try to agree what happens to the home as part of your overall financial settlement. Consider:

• What each of you actually needs (not just wants)
• What you can each realistically afford
• The children’s needs
• The overall fairness of the settlement

If you can’t agree, a mediator can help you find solutions, or ultimately a court will decide.