Two keys with splitted key rings with pendant in shape of house

Getting divorced is a traumatic experience without the added worry of whether or not you will have to sell your home. The thought of this is even worse if you have children and naturally you will have concerns about up-rooting them from their home which will cause further disruption and distress to their lives.

The Court’s powers

The starting point in English family law for dividing assets on a divorce is a 50-50 split between the parties although it is possible for the court to depart from dividing everything equally in some situations. Unlike other jurisdictions, it does not matter whose name the property is in, both parties to the marriage have an interest in it.

Property interest

There are a number of orders which the court can make in relation to a property including orders for sale of property, transfers of property, and lump sum orders to compensate one person for property interest.

The orders a court will make in relation to a family home depend on a number of factors including:

The size of the matrimonial pot

Whether or not your family home will have to be sold will depend largely on the size of the matrimonial pot. If, for example, there are other assets which can be used to offset the value of the family home and one party wishes to keep it, it may be that the other party can take alternative assets to compensate them for giving up their interest in the home. In an ideal scenario, you may share an interest in more than one property so your spouse can move there if they are of similar value.

Housing need

The court considers the parties’ ‘housing needs’ as one of the main factors in its decision as to whether or not the family home needs to be sold. If, by way of example, there are no other assets and all of the capital is in the family home, a couple with no dependents would probably have the same ‘housing need.’ If one is in a position to buy the other out of the property, it might not have to be sold. Otherwise, the parties would have little choice but to sell the property and divide the net equity equally, eliminating any property interest.

Alternatively, if one of the parties to the marriage is the primary carer of young children it may be that their housing need is greater than their spouse and more of the equity in the property would be allocated to them.


In a scenario where one party brought capital into the marriage which helped to purchase the family home or where there has been help from parents or an inheritance, it is not automatically the case that these funds can be ring-fenced from the division of the assets and attributed to the person who brought the money into the marriage.

The parties’ respective ‘housing need’ trumps all arguments for ring-fencing capital so if there is not enough surplus capital to meet both parties’ housing needs without recourse to the contribution, it will form part of the matrimonial pot.

Other options

In some cases (and these are less common than they used to be), it is possible for one party to remain in the property until a future ‘trigger’ event such as the youngest child reaching the end of secondary school. In some instances, it is possible to facilitate a charge-back whereby one party transfers their ownership to the other party on the basis of a charge being registered against that property for a fixed sum.

Nowadays, judges are unlikely to award either of these arrangements because it is considered unfair on the person who is having to wait for their capital (and this could be for a considerable time if the children are young).

Doing your homework

Market appraisals

From the outset, both parties should obtain market appraisals for the property so that you can calculate what the value of the property is, subtracting any outstanding mortgage, early repayment penalties and using the standard 3% of the value as costs of sale. Once you have this calculation, this is the net equity in your property which is available for division.


It is possible that one party can buy out the other party by re-mortgaging the property and one of the first things to do when considering which way to proceed is to obtain quotes from mortgage brokers as to the likelihood of re-mortgaging without the other party’s ongoing involvement so that they are released from their liability under the mortgage.

What if I am not on the legal title to the family home?

As a spouse, you have a beneficial property interest even if you are not named on the legal title to the family home and the property still falls as part of the matrimonial pot capable for division. It is very important that you take advice on whether to register a ‘matrimonial home rights notice’ against the property on the title register. This means that if your spouse tried to sell the property, re-mortgage it or in some other way charge the property without your knowledge, your interest as a spouse will be flagged and your consent required.

A sale of the family home

As explained, whether the family home needs to be sold will depend largely on what other assets are available to be divided between the parties. If you do need to sell the house, it is advisable that both you and your spouse have joint conduct of sale so that neither party is kept in the dark about the marketing value of the property, the estate agent strategy and, of course, the ultimate offer that is accepted.


If you would like to discuss divorce and how it effects your home, please get in touch with our family finance team, and they would be happy to advise you.