The Family Home

Author: James Bloom

The ‘ex-matrimonial home’ is a highly emotive subject in divorce proceedings as well as often being the largest asset the couple owns. Depending on your situation, it could be sold and the proceeds divided equally, or get signed over to one partner exclusively.

Coming to an Agreement

If possible sit down with your partner, talk about your respective needs and try to reach an agreement. The court process regarding property can be long and painful so the more you can get out of the way in advance the better. If you and your partner are having trouble coming to an agreement, seek help from a specialist mediator.

There are numerous options and powers available to the courts. Make sure you talk through the various possible outcomes with a solicitor. When you go to court, they will encourage you and your partner to agree between yourselves without them having to make an order, so work out your boundaries for negotiation.

How a Court Decides

If a court ends up making an order regarding your home, their primary considerations will be the needs of any children and the means and earning potential of each partner. If there are no children, a court will usually divide the assets equally. If the mother gets sole residency of the children, she will usually also keep the family home. Even if the home is in the husband’s name, the courts have the power to sign it over to the wife in entirety.

If the children are independent but the mother has spent many years caring for them, a court will usually be disposed to securing capital and an income for her. They will also consider if she has re-married and given up a home or pension rights.

The father may be eligible for a Mesher order, whereby the home is assigned to the mother until the children are independent, at which point he would get a percentage share of the proceeds from the sale of the house.

Courts can also make certain types of orders to transfer rented property in a divorce. You should consult your solicitor as to what rules apply for you.

The main factors influencing a court’s decision are:

The welfare of any children.
The income, earning capacity and resources of each person.
The financial needs, obligations and responsibilities of each person.
The standard of living enjoyed by the family before the breakdown of the marriage.
The contribution made by each person to the welfare of the family.
The conduct of each person. This is only in very exceptional cases.

Short Term Considerations

You may want to consult a solicitor to make sure any property owned by your spouse is not sold or renovated before you divorce. You can also ask the Land Registry to have your house registered in your name too.

Make sure to keep up any payments and draw up a budget for how you and your partner are going to manage the separation while keeping afloat. You may want to cut costs in the short term by cancelling insurance or other payments, but you could regret the decision in the future. Try to keep things running as close to normal as is possible under the circumstances.

If You Have to Leave

If the home atmosphere becomes too difficult to cope with or you are suffering abuse and have to leave, you will not lose any rights to the property.

Your situation may be slightly different. ask a question below ↓ and our editorial team will reply with our advice.

Your Ex is Living With a New Partner

You have no legal rights to a new partner’s property, but the fact they are living with someone else will usually lower their outgoings and therefore, especially in cases where children are involved, increase the amount of money available to provide for your accommodation.

Divorce Mortgages

Some banks and building societies now offer specialised divorce mortgages, which help you refinance and make a fresh start. Call your bank or building society and find out what they offer.

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Ap18 18/06/2021 at 12:48 am

I am getting divorce and I have 1 child and a house on both of our name. I work part time. I wanted to move the Mortage over to my name if p agrees. But my current Mortage providers says I can’t with my part time job. My family says they can help me pay some money towards the house (as deposit) will the court/judge take that into consideration and let me get the house?

Ap18 18/06/2021 at 12:47 am

I am getting divorce and I have 1 child and a house on both of our name. I work part time. I wanted to move the Mortage over to my name if p agrees. But my current Mortage providers says I can’t with my part time job. My family says they can help me pay some money towards the house (as adeposit) will the court/judge take that into consideration and let me get the house?

Sahar 01/07/2020 at 7:56 pm

I divorcing with husband. I have 2 kids under 5. Can I stay in the house until our youngest kid turns 18? As I cannot allow mortgage payment and rent.

JJ 05/06/2019 at 12:00 pm

When I met my husband six years ago, he was in danger of losing the house he lived in. The property was on the market as he had to pay off an ex-partner. I offered to help by paying half the figure required to buy her out. He accepted the offer if I would move in and go 50/50 on everything with him. Later I sold my own home, I used money from that sale to pay off our joint mortgage. Fours years later we married, but after an extremely turbulent two years of marriage, we are looking to divorce and divide up the assets.
My husband is now saying that I am not entitled to much as he owned the property prior to us meeting. I would like to know if I am entitled to the 50% he promised, or can only expected to receive a fraction of what I have invested? He is retired, we have no dependent children.

VaL Editor 10/07/2018 at 3:08 pm

@DivorceeDee - perhaps it was to show that your ex had income coming in so that your ex could buy you out of the property. I don''t think your ex will have had to give your son notice.

DivorceeDee 08/07/2018 at 11:49 pm

My ex husband and I divorced a year ago and had a clean break order in place. He bought me out of the house so I could buy a place of my own. Our son (20) was still residing with him and at the time he had to sign a document from the solicitors/mortgage company saying that he was living in the property and paying board, although I am unsure of what this document was. Since then my ex and his new partner have thrown him out without warning and I’m just wondering if you know what this document was likely to have been and whether he should’ve been given some notice before being thrown out (his dad had still taken board from him!)

DivorceResource Editor 21/06/2018 at 3:35 pm

As a rule, a court will allow the primary carer of the children to stay in the home until the children leave full-time education, if you can afford the mortgage. You can see more via whichwhich may help further answer your question.

SJ 20/06/2018 at 11:49 pm

Getting to the end of our divorce/ financial negotiations. Looking at a Mesher agreement, husband is flatly refusing to put the house into my sole name while his name remains on the mortgage. I cannot raise a big enough mortgage to remortgage on my own and buy him out of the equity share which he needs to leave. Have two sons 9/14 who are both quite vulnerable so very keen to maintain as much consistency as I can for them. Ex has not consistently worked for a decade. I work full time. Just wondering if there is a way ahead.

DivorceResource Editor 18/05/2018 at 10:39 am

In cases such as this mediation may be the best way forward if you cannot agree between you, as we could not possibly comment on whether this is fair. There are so many other variants to be taken into consideration.

Mel 17/05/2018 at 9:29 am

My ex husband left me with 3 children over a year ago. He is now living in large rented accommodation with his girlfriend who he was with when he left me. I want to buy him out of our house which has about 100000 equity. I have offered him 20000 and although we both have pensions, he is drawing on his army pension and is working contributing to another pension. I have said we won't touch each other's pensions if he accepts. Am I fair? With his pension he earns 40000 with prospect of promotion.

DivorceResource Editor 16/04/2018 at 1:58 pm

You are advised to wait until you wish to sell the house, as circumstances could change in the next few years meaning that any settlement reached or drawn up now could potentially alter. Also, as outlined in the article, it would be better if you can agree between you and your ex what a fair financial agreement should be. Only if the matter goes to court, would a court make a decision regarding whether you have the larger split of the house. Court is always seen as the last resort where all other agreements fail.

WorriedWoman 14/04/2018 at 7:06 pm

Hi. My husband and I divorced 10 years ago but I never got a solicitor to sort out our finances because, at the time, there was no equity in the house. For the last 10 years, I have paid the mortgage and brought up our two children. My ex has been paying maintenance for them but nothing towards the mortgage.
In the next five years, I am hoping to sell the house - which now has some equity.
Should I try and organise a financial settlement now, or wait until I actually go to sell? Do I have a chance of acquiring more than a 50/50 split?

DivorceResource Editor 23/03/2018 at 2:03 pm

Unfortunately, it is quite often the case that a non-resident parent has to continue to pay the mortgage because the primary care of the child doesn't earn enough to cover the mortgage. When taking out a mortgage both owners are equally liable for the debt for the duration of the mortgage term .One option is for your wife to get a ‘guarantor mortgage’, or financial help if she has a close relative who is willing to take on the mortgage payments if and where she cannot. Otherwise, for more suggestions. Many people continue to live under the same roof until separating becomes affordable. Mediation might be an option for you both to consider in order to see if there is a financially viable solution to the matter. However, your wife will not be able to rely upon income from state benefits with regards to a remortgage.

Scott 23/03/2018 at 8:19 am

Hi My wife and I brought a house around 8 months ago, since she has decided that she no longer wants to be together, (at this time we arent planning a divorce due to costs)
She has offered to buy me out for my share of the original deposit (£5000), we have a 19 month old son who we will be try to do 50/50 custody (once i have a place to live).

I am concerned firstly we won't be able to get me off the paper work due to the fact she is part time and would require benefits to cover the mortgage, is this something lenders will consider?
And will me come coming off the mortgage impact future mortgage applications?

If they won't remove me from the mortgage, the only other options are sell it which we don't want to do or i keep paying for a house i dont live in

DivorceResource Editor 09/03/2018 at 2:53 pm

If you both only lived in the house you purchased together for a short time, then she would only be awarded (in court or arbitration) more or less what she put into the purchase of the house and perhaps a share of the equity since the purchase. You may wish to seek legal advice. A solicitor's letter outlining what your ex is entitled to may help.

ABCDE 09/03/2018 at 8:51 am

Hi, I am in the process of buying out my ex partner from a house we jointly own. we lived together for 12 months and she has been gone around 12 months also. She is seeking an equal share in both the equity and the deposit funds. I am able to prove that her deposit contributions amounted to only 10% though I am not sure if I can ring fence this money or if she is entitled to 50% despite any supporting evidence.

DivorceResource Editor 15/02/2018 at 11:18 am

You would need to seek professional advice regarding this matter or try mediation as a way of attempting to work out your finances between you and your ex. However, you are unlikely to get a mortgage on your basic income, as a mortgage will have to take into consideration both your incomings and outgoings.

Mrs K 14/02/2018 at 8:17 am

Hi there, My husband and I have recently separated after 16 years of marriage. We have a joint mortgage on our property, which has recently been valued at approximately £280,000. There is approximately £40,000 left on the mortgage over the next 7 years. We have 3 children, 20, 16 (in full time education) and 11. The deposit on the existing mortgage was £100,000 which came from the sale of my own property in my name. I would like to buy my husband out of the family home now. He is self-employed, earning approximately £4,000 a month, whereas I work term time only in a school and earn £10,000 per annum. Could I get a rough estimate on what figure I would be looking at in these circumstances please? Any info greatly appreciated.

Jonno 01/02/2018 at 9:55 am

My fiancee and her ex husband have agreed a settlement figure for the equity on their house and I want to 'buy him out' - will I have to pay stamp duty if I borrow from a mortgage lender?

DivorceResource Editor 05/01/2018 at 3:32 pm

If you have the money in place to buy her out and you do not have to get a mortgage, then you may have to prove the money is in place before you go ahead with the transaction.

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Occupation Orders and What They Mean

Talking to Your Mortgage Lender About Your Divorce

Who Stays and Who Goes from the Matrimonial Home?

Dividing Your Assets Before Divorce

What to Do with the Family Home?

Getting Help with Property