Who gets the house in a divorce?

Who gets the house in a divorce is one of the biggest decisions you’ll have to agree on when you split from your spouse or civil partner. We look at how the process works.

Angela Kerr Director, Editor

Who gets the house in a divorce? 

There are no set rules as to who gets the house in a divorce and no prescribed way of splitting the house during a divorce. It depends on individual circumstances. For example, in some cases, the family home may be sold and the proceeds divided between the parties. Or one spouse may be awarded the property while the other spouse is compensated in another way. Read on to find out more details of how this works.

What happens to the house when you divorce

The main options of what happens to the house when you divorce are:

• You can sell your home and you both move out 
• Arrange for one of you to buy the other one out – read on for more on this.
• One partner stays in the house and the other gets a lump sum or retains a stake in the house. They’d then get an agreed proportion of the proceeds when the house is sold.
• One partner remains in the house until certain conditions are met, perhaps until your children are 18. When the property is sold, both partners receive a share. In this scenario, it is important that the person moving out knows they are still liable for the debt on the family home. This means that they may struggle to get a mortgage on another property.

How do you decide who gets the house in a divorce?

There are different ways you can decide who gets the house in a divorce:

Splitting the house without going to court

If you’re on good terms with your ex, you may be able to agree the terms of your divorce including who gets the house without going to court. But don’t make the mistake of not getting legal advice, you’ll need to protect your long-term interests. To make the agreement legally binding, you would need to fill in a Consent Order form and send it to the courts.

If you can’t agree, your next step is mediation. This is a voluntary and confidential form of alternative dispute resolution. If you can agree on issues around property, money and childcare through mediation it avoids the cost and stress of going to court.

Getting a court to decide

However, if you’re getting divorced and it’s not possible to come to an agreement outside court, in order to divide assets inlcuding who gets the house in a divorce, the judge will consider a number of factors including:

• Whether there are any children under the age of 18 and who they will be living with
• How long you have been married or in a civil partnership
• The age of each person in the marriage or civil partnership
• The standard of living during the marriage or civil partnership
• The value of the assets from before, during, and after the marriage or civil partnership
• Each person’s earning capacity and their role within the marriage or civil partnership – such as bringing up children
• The contribution of each party to the assets and finances during the marriage or civil partnership
• The overall needs of each member of the couple. It is always the case that the needs of any children will be the priority in any decisions that are made by the court.

For legal advice, our partners at Law Superstore can connect you with family law experts to help advise on your particular situation.

How is a house divided in a divorce?

When you divorce, all property, whether jointly owned or not, can be treated as marital assets to be split up in a way that the couple, their lawyers and if necessary, a court agree is fair.

If you own the property as Tenants in Common and there is a Declaration of Trust or Deed of Trust document that states the division of shares, the trust deed is still valid after marriage but it will be considered alongside other important factors by the courts.

Who gets the house in a divorce with children?

The court’s main aim will be to lessen the impact on any child’s life, so the primary caregiver of the children will usually have the advantage when it comes to remaining in the family home. There may be a court order in place to defer the sale of a house until a certain event happens, like all dependents turning 18.

Getting a divorce house valuation

You’ll need to get a house valuation if you want to buyout your partner’s share of the house or sell your home and divide the proceeds of the sale. A valuation survey is recommended as it’s an independent, professionally-prepared assessment of a property’s value, based on a set of standards set out by RICS.

Find local chartered surveyors to carry out a valuation survey.

If you want a quick online valuation now to give you an idea of the sale and rental valuation of your property, use our free, instant online valuation tool.

Who stays in the house during a divorce?

It’s common for one spouse to move out when a couple separates. But moving out doesn’t affect someone’s rights to the ownership or occupation of the property. Both parties have ‘home rights’ until the financial settlement is made.

Joint mortgage separation rights

If you and your spouse have a joint mortgage, you’re both responsible for paying the mortgage, even if one of you doesn’t live there anymore. Also, if one spouse doesn’t pay their share the other party can be held responsible to pay the full amount.

So it’s important to have a discussion early on about how the mortgage is going to be paid during your separation. Any missed or late payment will affect your credit rating and can impact on your ability to get a mortgage on another property. 

How do I remove my partner’s name from the mortgage? 

To remove your partner’s name from a joint mortgage they must also be removed from the title deeds, this involves applying for a “transfer of equity”. However, in order to agree to this, your lender will want to be confident that you can afford the mortgage on a single income instead of the previous two.

Transfer of equity: How the proccess works

Through this process, one partner is legally transferring the ownership to another. If you own the property as joint tenants, you may need to give your partner half of the equity. The equity includes the deposit, the money you have paid off the loan and any extra you have made on the property. So, if your property is worth £100,000 and you have £50,000 equity in the property, you would need to give your partner £25,000.  

If you don’t have savings to cover it, your next option is to apply for a larger loan (i.e. remortgage). 

You will need to prove to your lender that you can pay for the additional loan. If your lender refuses, you could apply for a mortgage with another bank or using a mortgage broker. 

Speak to a no-obligation, fee-free mortgage broker today about your options.

Transfer of equity and stamp duty

If you are married or in a civil partnership, HMRC will not charge you stamp duty land tax on the portion you are buying from your partner. 

You’ll need to get a solicitor to handle the transfer of equity process. Find a lawyer to undertake your transfer of equity with our partners at Law Superstore.

What if ownership of the house is in one name?

If your name is not on the mortgage and you are married or in a civil partnership, you can protect your home ownership rights. Speak to a lawyer about how to go about this as soon as you think it is likely that you are going to divorce. They should be able to register a Home Rights Notice at the Land Registry on your behalf. This means the house cannot be sold without your knowledge or pending legal proceedings.  

You can usually only live in the property until the divorce, annulment or dissolution has been finalised and a court settlement agreed.  

What are marital assets?

Assets acquired during the marriage are considered to be ‘marital assets’ which can all potentially be divided. The courts also consider where a spouse may have lost assets they would have had, were it not for the marriage. Such as if one spouse stayed at home to look after children while the other went to work.

What happens when you divorce with property owned before marriage?

If the property has been in one person’s sole name, never been the marital home and any income from the property has been kept in a separate bank account and not been used for the purpose of the marriage, it may be possible to argue that it should be considered a non-matrimonial asset and ring-fenced from any financial settlement. But be sure to get specialist advice tailored to your circumstances.

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