When it comes to getting a divorce, your home is typically the biggest financial asset to be considered. Dividing property during a divorce can face both emotional and legal challenges. Naturally, both parties want to keep the home, which makes coming to an agreement even more tricky.
If you’re worried about the future of your family home in the event of a divorce, we’re here to explain how the process works as well as your options.
Dealing with divorce or a family legal issue? Our experienced team can provide the help and support you need. Explore our Divorce and Family Law services to learn more about how BGW can help.
How is property divided in a divorce?
When dividing property in a divorce, there’s no fixed rule or guaranteed 50/50 split. Each situation is different, and the court’s main aim is to reach an outcome that’s fair to both parties, based on your circumstances.
The family home is usually one of the most valuable assets in a marriage, and there are several ways it can be dealt with:
- Sell the home and both of you move out. The sale proceeds can be divided, and each person can then use their share to buy or rent another property. It’s a clean break, though not always possible if one of you can’t afford to rehouse independently.
- Arrange for one of you to buy the other out. If one partner wants to stay in the home, they can buy out the other’s share, either with savings, a new mortgage, or by offsetting other assets (for example, taking a smaller share of savings or pensions).
- Keep the home without changing ownership. Sometimes, both partners remain as owners even though only one continues living there. This is common when children are involved. The property might then be sold later, and the proceeds divided at that time.
- Transfer part of the property’s value as part of the financial settlement. One partner can transfer a portion of their ownership rights to the other but retain a stake. When the home is eventually sold, they’ll receive an agreed percentage of its value.
As a couple, you can agree on these arrangements together, through mediation, or with help from solicitors. If an agreement can’t be reached, the court will decide on how the home and other assets should be divided.
Whatever route you take, it’s essential to formalise your agreement with a financial order so it’s legally binding and prevents future disputes.
Legal ownership vs marital rights
Ownership isn’t always as straightforward as whose name is on the deeds. Even if the home is legally owned by one spouse, the other may still have certain rights.
If you’re married or in a civil partnership, you have what are known as home rights. This means you have the legal right to live in the matrimonial home until the divorce or financial settlement is finalised, even if you’re not the legal owner. You can also register these rights with the land registry to make sure the property can’t be sold or remortgaged without your knowledge.
In some cases, a spouse may also have a beneficial interest in the home. For example, if they’ve contributed to the mortgage or renovation costs, although their name isn’t on the title deeds. Because of this, they have a financial stake in the property’s value, which will be considered when assets are divided.
Learn more about how assets are divided in a divorce.
What factors will the Court consider?
If partners can’t reach an agreement, the court will decide what happens to the home and other assets. Its main focus is to reach a fair and reasonable outcome for both parties.
Under Section 25 of the Matrimonial Causes Act 1973, the court looks at a range of factors, including:
- The welfare of any children – their housing needs usually take priority.
- Each person’s income, earning capacity, and financial needs.
- The standard of living during the marriage.
- The length of the marriage and each person’s contributions.
- Age, health, and future earning potential.
Every case is unique, which is why the court doesn’t follow a set formula but instead looks at your individual situation to determine what’s fair.
Common outcomes for the family home
Depending on your circumstances, there are a few ways the court (or you and your solicitor) might deal with the property:
- Sale and division of proceeds – often used when both parties want a clean break.
- Transfer of ownership – one person buys out the other’s share or takes ownership as part of a wider settlement.
- Deferred sale (known as a Mesher or Martin Order) – the sale is postponed until a specific event, such as when children turn 18 or finish school.
- Continued co-ownership – both parties remain as joint owners for a set period, although this is less common.
These outcomes aim to balance practicality and fairness, especially where children are involved.
What if you’re still paying off your mortgage?
If you have a joint mortgage, both parties remain legally responsible for the repayments until the loan is paid off, transferred, or sold. Even if one person moves out, both are still liable for missed payments.
If only one name is on the mortgage, the other partner may still have occupational rights or a financial interest in the property until the divorce is finalised. In these situations, it’s important to speak to your solicitor and mortgage lender early to explore your options.
Sometimes, one partner may be able to remortgage the property in their own name and buy out the other’s share. In other cases, the lender may not agree to remove one name if affordability can’t be met.
How BGW Solicitors can help
Dividing property after a divorce can be complex, especially when your family home is involved. At BGW Solicitors, we’re here to guide you through the process with clear, practical advice.
Our experienced family law team can help you:
- Negotiate fair property and financial settlements.
- Protect your rights to the family home.
- Apply for or respond to financial orders.
- Work closely with our residential property and wills & trusts teams to make sure every aspect of your future is covered.
If you’re unsure what will happen to your home during divorce, we can explain your options and help you take the next steps with confidence. Contact our team today for an initial consultation.