By John Loram | Finance & Property | April 2023

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What happens to property in a divorce?

For many married couples, their family home is often the most valuable matrimonial asset. When getting divorced, there comes a time when you and your former partner have to decide on what happens with all your marital assets, including the family home.

Coming to a final decision on what happens to any property after divorce can be difficult. There are lots of things to consider; your legal rights, your ex-partner’s rights, what will work best from a practical viewpoint for you and any children and the available options when it comes to sorting out the marital home .

There is no simple answer to how assets, including your home, will be divided between a divorcing couple (or one dissolving a civil partnership) because under UK divorce law, there is no ‘standard split’ of assets.

With so much to think about, speaking to a mediator is a popular choice for divorcing couples looking to reach an amicable settlement over what happens to any property they own.

In this article, we’ll help you understand more about your rights and options when figuring out what will happen to property after divorce.

What we’ll cover

• Is a house split 50/50?
• Who can stay in the house during divorce?
• Know your Home Rights
• Your rights if one person owns the property
• Your rights if both of you own the property
• If you feel unsafe in your home
• Dividing marital property
• 1. Selling your home
• 2. One party buys the other party out
• 3. Postponing sale (or Mesher Order)
• 4. Sharing the house
• If you can't agree what happens to your home

Is a house split 50/50 in a divorce?

The most important thing to understand when deciding on what will happen with the marital home is that there is no such thing as a 'standard split'. Despite the common misconception, the house is not split 50/50 in a divorce or dissolution by default.

This is because, from a legal viewpoint, the division of assets and liabilities in a divorce or dissolution is dictated by the specific circumstances of each case. Factors that are considered when deciding what happens to the marital home and dividing assets and liabilities include the needs and resources of each spouse and more importantly the needs of any children as well as the length of the marriage, amongst a variety of others.

As such, the outcome of a divorce or dissolution can vary greatly depending on the individual circumstances of each case. In some cases, it may be appropriate for the house to be split 50/50, but this is not a standard rule.

Who can stay in the house during the divorce?

You both in the short term will usually have the right to stay in the home until the financial agreement is finalised, whether you rent or own your home, or the property is in just one of your names, as until then it has not been formally decided who stays in the house and what happens with the property.

It’s a good idea to seek legal advice before asking your partner to leave the marital home whilst the divorce is in progress, and even more important that you get advice if you have been asked to leave.

However, if you move out of the family home, this doesn’t count against you in the eyes of the court. It is not one of the factors that a court considers when making its decision about what should happen to the marital home in the longer term.

Know your Home Rights

Home rights allow you to continue residing in your marital home, irrespective of who purchased it. Therefore, even if the house is registered solely in your spouse's name, you will have the right to stay there. However, it's worth noting that this right is only applicable when the property is used as a matrimonial home for both partners. In other words, this right does not extend to properties that haven't been used as a family home, such as an investment property or holiday home.

If your spouse owns the property in their name only, but you and your spouse have lived in it as a family home, then you possess home rights. To protect your home rights, you have to register your home rights with the Land Registry, who will place a notice on the property. This means that the property cannot be sold, transferred, or mortgaged without your knowledge. Once registered, neither partner can be evicted from the matrimonial home, except in cases of domestic violence or a court order.

Typically, your home rights will last until the divorce or dissolution has been finalised and a court settlement agreed.

Similarly, if you live in a rented property, then you will have to sort out who retains the tenancy and stays in the property after the divorce (or dissolution of a civil partnership) is finalised. Until that point, you both have home rights which means you can stay there whatever your partner says, even if the tenancy isn’t in your name.

Your rights if one person owns the property

Both married partners have the legal right to live in their matrimonial home, whether it is held in the names of both parties or just one. If you own the property in your sole name, you are legally entitled to stay there and don’t need to register home rights but if the property isn’t in your name legally, then you can register your home rights to stay there.

Your rights if both of you own the property

If you own the home jointly with your spouse, then you do not need to register your home rights, as you are already an owner of the property. You have a right t o live in the home, and it cannot be sold or mortgaged without you giving your consent and signing the relevant documents.

If you feel unsafe in your home

If you feel unsafe in your home, you should call a domestic abuse organisation or helpline. In these circumstances, an adviser will help you find safety and discuss your options.

Dividing marital property

When a married couple decides to separate or divorce, one of the most complex and challenging aspects is the division of their marital property, as this is likely to be the most valuable asset they possess and the issue of future accommodation will be a priority for both of them. If possible, it’s always preferable that the couple come to an agreement between themselves or with the help of a mediator as to what should happen to the home. However, if they can’t, then they will need to ask the court to determine what is fair. The court has very wide powers when making decisions about matrimonial property, including forcing a sale of the home, transferring it from one person to the other or postponing the sale until the children are grown up.

In this section, we’ll explore the different options available to couples when working out what to do with their home as part of the divorce.

The most common options include:

1. Selling your home
2. One party buys the other party out
3. Postponing sale (or Mesher Order)
4. Sharing the house

1. Selling your home

Selling the family home is one option that couples can consider when dividing their marital property. While it can be a difficult decision, selling the home can often be the most straightforward and practical solution for both parties.

Selling the home allows the couple to divide fairly the proceeds from the sale and create a clean break. . As outlined above, how the proceeds are split will depend on a number of factors, with priority being the welfare of the children.

This can often be sorted with a mediation where the couples can use an impartial third party to help navigate the discussions about what a fair split of the proceeds might look like.

2. One party buys the other party out

Another option for dividing the matrimonial home is for one party to buy the other out of their share of the family home. This approach can work well if one party wants to keep the home and can afford to purchase the other's share.

One advantage of buying out the other party is that it allows one spouse to retain the family home, which can often be important for emotional or practical reasons. For example, if there are children involved, it may be desirable to keep the family home as a stable and familiar living environment or to ensure they can remain at their current schools.

The process of buying out the other party will involve determining the fair market value of the home and then dividing the equity in the property fairly between the spouses. The spouse who wants to keep the home will need to pay the other spouse their share of the equity in the property.

Whilst buying out the other party can be a good solution in some cases, it does have some potential drawbacks. One potential issue is that it can be challenging to determine the fair market value of the home, which could lead to disagreements or disputes between the parties. Another is that the spouse who is buying out the other will need to secure financing in order to make the purchase, which could be difficult and is often unaffordable.

3. Postponing sale (or Mesher Order)

A Mesher Order is a court order that delays the sale of a family home, either for a fixed length of time or until a specified event occurs, such as the youngest child reaching a certain age. This approach can be useful for couples where there is not enough equity in the family home to fund two new homes as it enables the children to remain in the family home until a particular point in time, at which point the property can be sold and the equity shared out.

Deferring the sale of the family home can provide stability for children who are going through the divorce process. By allowing them to remain in the family home for a set period of time, children can maintain a sense of familiarity and stability during what can be a difficult transition.

Whilst it can be an effective way to divide property in a divorce, there are some factors to consider. It is likely to mean that the spouse leaving the property is unlikely to have sufficient funds to purchase another property until the children have grown up, which may be many years in the future, so decisions will need to be reached on various important points. The two most important will be how the proceeds are eventually split and the events that will trigger the sale of the property. The most common “trigger event” is when the youngest child reaches a certain age, and consequently the couple will need to decide what age that should be. Will it be 18 when the child finishes their basic education or should it be later if the child goes on to university or does an apprenticeship? But there are other possible events that the divorcing couple might also agree on, such as the person remaining in the family home cohabiting there with a new partner.

Decisions will also need to be made about how the mortgage will be paid and how the equity is eventually shared. Will it be a fixed figure or should it be a percentage? Should the spouse who has left the property be given credit for the delay in getting his or her share of the value of what is usually the main marital asset? And if the spouse who remains in property is paying the mortgage on their own, should they be given credit for reducing the mortgage and thereby increasing the equity? The divorcing couple will inevitably have different views about these points so using mediation to work through the different options to find a workable solution is often an excellent way forward.

4. Sharing the house

One less common option - and not one the court can impose - some couples consider when looking at the question of what to do with their marital property is sharing the family home. This approach involves both spouses retaining ownership of the property and continuing to live in the home together, albeit in separate areas of the house.

Sharing the house allows both parties to maintain a degree of stability and continuity in their living situation. This can be particularly useful for couples who have children, as it can minimise the disruption to their daily routines and provide a sense of normality and consistency during a difficult time.

Sharing the family home may be an option for some couples when dividing their marital property, at least for a period. However, sharing the family home can cause some obvious issues, such as the challenges of navigating the logistics of living in the same space while also maintaining separate lives. This approach requires a high degree of cooperation and communication between the parties, which may not be feasible for all couples. For some couples, it offers a temporary “holding position” while they work out longer term arrangements.

If you can't agree on what happens to your home

If you and your spouse can't agree on what to do with the property, there are several options available to you. One option is to go to court and let a judge decide. The court has the power to make a legally binding decision on the matter, which can be reassuring for those who are struggling to reach an agreement.

However, the process can be lengthy, costly and, by its very nature, is adversarial. Additionally, the court’s decision may not be what either party wants. In addition, going to court can be emotionally draining and will inevitably damage the relationship between parties, which will in turn impact any children. Consequently, going to court is seen by most divorcing couples as a last resort.

Fortunately, there are few alternative ways to come to a property agreement without going to court.

A popular option is to use an alternative dispute resolution (ADR) method, such as finance and property mediation. This process involves a neutral third party who helps facilitate the discussion and decision-making process. Mediation, in particular, can be a helpful option because it allows the parties to communicate directly and work together to find a mutually acceptable solution. The mediator will help you understand all the available options, and provide more clarity on how your decisions will hold up in court. It's also typically faster and less expensive than going straight to court.

Once you have come to an agreement in mediation, you can make this legally binding by applying for a consent order.

It’s important to approach the situation with an open mind and a willingness to listen to the other party. If you can find common ground and work together towards a mutually acceptable solution, you can avoid the stress and expense of going to court while still achieving a fair and equitable resolution.

Speak to a finance and property mediator

If you and the other party are struggling to come to an agreement regarding property, it may be helpful to speak to a finance and property mediator. A mediator can provide a safe and confidential space for both parties to express their concerns, needs and priorities, and work towards finding a mutually beneficial solution.

At Mediation First, our experienced team of mediators can help you reach an amicable agreement on issues related to finance and property, without the need for costly and time-consuming litigation.

Find out more about our finance and property mediation services, or speak to us directly.