How is the family home split in a divorce?
There is no fixed rule. The home can be sold and the money divided, one of you can buy the other out, the sale can be delayed until children are older, or it can be transferred to one of you in exchange for other assets. When a court decides, children's welfare and both people's housing needs come first.
Published . General information, not financial advice.
How does the court decide who gets what?
In England and Wales the court follows section 25 of the Matrimonial Causes Act 1973. Its first consideration is the welfare of any child of the family under 18. It then weighs each person's income, earning capacity and resources, needs, age and health, the length of the marriage, the standard of living, and contributions, which include looking after the home and children.
For assets built up during the marriage, the starting point is equal sharing. That can move a long way if one person's needs, usually housing for themselves and the children, can't be met from half. GOV.UK notes that the reason for the divorce is generally disregarded, and that judges usually aim for a clean break where it is possible.
Scotland starts from equal sharing of matrimonial property, but the definition is narrower and is fixed at the date you separated.
What are the options for the family home?
- Sell and divide the proceeds. Each of you can then buy or rent. Check what you could actually buy with your share and a mortgage on your own income.
- One of you buys the other out. The person staying usually needs a new mortgage in their sole name, and the lender has to be satisfied they can afford it.
- Delay the sale. A Mesher order lets one of you stay in the home with the children until a trigger, often the youngest finishing school, when the house is sold and split in agreed shares.
- Transfer the home outright. One of you keeps the house, and the other keeps more of the pensions or savings instead.
Keeping the house can feel like security, but it can leave you asset rich and cash poor. Before agreeing to it, work out whether you can pay the mortgage, insurance, repairs and bills on one income. Our mortgage repayment calculator can help.
Can you stay in the home while it is sorted out?
If you are married or in a civil partnership and the home is in your husband's sole name, you have "home rights" to live there. You can protect them by registering a home rights notice with HM Land Registry, which stops the property being sold or remortgaged without you knowing.
If the home is in joint names, you are both owners and neither of you can sell it alone.
What happens to a joint mortgage?
You both stay liable for the whole of a joint mortgage until it is repaid or the lender agrees to take one of you off. National Debtline notes that lenders are unlikely to agree unless the remaining borrower can afford the repayments.
A consent order can say who pays, but it binds the two of you, not the lender. If your ex stops paying a joint mortgage, the lender can still pursue you, and missed payments can appear on both your credit files.
Is there tax to pay when property changes hands?
Capital Gains Tax. Since 6 April 2023, separating spouses and civil partners can transfer assets between them on a no gain, no loss basis for up to three tax years after the tax year they stopped living together, and without time limit if the transfer is part of a formal divorce agreement. If you move out but keep a share of the former home, you may be able to claim Private Residence Relief when it is sold. If you give up your share in exchange for a percentage of the eventual sale price, the same treatment can apply when you receive it. See GOV.UK's summary.
Stamp Duty Land Tax. Transfers of property between spouses under a court order, or an agreement made in connection with the divorce or separation, are exempt from SDLT. The exemption does not cover anyone else, such as a new partner.
Selling a former home or investment property, or moving shares and other investments, can still create tax bills, so check before agreeing.
What about savings, businesses and other assets?
Everything goes into the overall picture: savings, investments, cars, valuable items and businesses. Get professional valuations for anything significant, such as jewellery, art or a share in a company, rather than relying on guesses. If either of you runs a business, its value and the income it really produces are often disputed, and an accountant's report may be needed. Both of you have a duty to disclose everything, as our Form E guide explains.
Don't sign under pressure, and don't treat any agreement as final until it is approved as a consent order. Without one, either of you can make a financial claim later.
Related questions
Is the house always split 50/50 in a divorce?
No. Equal sharing is the starting point for assets built up in the marriage, but the court gives first consideration to any children under 18 and then to both people's housing needs. The parent the children live with often receives a larger share of the home, sometimes balanced by the other parent keeping more of the pensions.
Can I be taken off a joint mortgage?
Only if the lender agrees. You both remain liable for the full mortgage until then. Lenders usually remove a borrower only when the person staying can show they can afford the payments alone, often through a remortgage in their sole name. A court order between you does not change your liability to the lender.
Do I pay stamp duty if my ex transfers the house to me?
No, if the transfer is between you and your spouse under a court order or an agreement made in connection with your divorce or separation. HMRC treats these transfers as exempt from Stamp Duty Land Tax. The exemption does not extend to anyone else, such as a new partner joining the mortgage.