Home / Family & Divorce / Divorce / Who gets the house in a divorce UK?

Who gets the house in a divorce UK?

Updated on May 26, 2024

| Divorce, Family & Divorce, Relationships, Property and Finance

Who gets the house? How property may be divided during a divorce.

When it comes to dividing assets, the question of who gets the house in a divorce is often one of the most difficult to resolve. Not only is it often the largest financial asset, but both parties will likely have an emotional attachment to the family home, especially if children still live at the property.

How is property split in a divorce UK?

If the parties can reach an agreement outside of Court, assets can be divided any way they wish. A mediation solicitor can assist the parties with negotiation, but mediation can only be successful if both parties are willing to communicate effectively with each other and compromise. If the parties do have to go to Court, assets are generally divided in accordance with the Matrimonial Causes Act 1973 which means the Court will need to take into account:

Each party’s financial situation and earning potential
Each party’s financial needs, responsibilities and standard of living
The length of the marriage
Contributions made by each party to the marriage (for example, mortgage repayments and childcare)
Each party’s assets and financial situation before the marriage
Any children that the parties are responsible for

In most circumstances, the Court will begin with a 50/50 division of assets, then work backwards to ascertain a fair distribution having taken the above factors into account.

Who gets the house in a divorce?

There is no one-size-fits-all answer to this question due to the fact that so much depends on the individual circumstances of the divorce. Firstly, it will depend on how the home is owned. If the home is solely owned by one party, they will usually be able to keep the house after the divorce, but the other party may retain a financial interest in the property if they have made financial contributions to the home, such as making mortgage repayments or funding improvements to the home. If you and your ex-partner own your home as joint tenants, here is a brief explanation of some of the options available.

The house is transferred into one party’s name

The party remaining in the home could choose to “buy out” their partner’s share of the property, which means they solely own 100% of the property and are also solely responsible for mortgage repayments. The legal process of doing this is called a transfer of equity and requires the consent of both parties. The Court may also order that the house is transferred into one sole name and that the leaving partner either receive a lump sum of money or retains a financial interest in the property, meaning that they will get their fair share of the sale proceeds when the house is eventually sold. If it is left to the Court to decide who gets the house, they will generally make their decision based on the financial needs and capabilities of each party. For example, the Court will need to consider whether each party could afford the mortgage repayments by themselves.

The Court orders the sale of the property

In some circumstances, the Court may decide to order the sale of the property and split the proceeds between the parties, who may then use the proceeds to buy another property. This will usually only happen if neither you or your ex-partner would be able to afford the mortgage repayments on your sole income. The Court may order that the sale takes place immediately or defer the sale until a later time using either a Martin Order or a Mesher Order. A Martin Order allows one party to continue living in the property for as long as they wish or until they remarry, after which the property is sold and proceeds shared. Similarly, a Mesher Order is generally used when there are children living in the home and defers the sale of the property until a specific event happens, usually when the youngest child turns 18 or leaves full-time education. If either of these Orders are made, both parties may remain liable for mortgage repayments until the property is sold.

What rights do I have if my partner owns the house?

If the property is solely owned by your ex-partner, they still cannot force you to leave the home before your divorce is finalised. When a couple marry, they receive Matrimonial Home Rights to the family home, which entitles them both to live there regardless of who owns it until the marriage is officially dissolved, unless the Court has granted an Order which states otherwise. However, you will need to register your matrimonial home rights in order for them to be enforceable. If your ex-partner is abusive or threatening, you can apply to the Court for an Occupation Order which can exclude them from the property even if they have a legal right to stay there. Do bear in mind however that the Court will need proof that your ex-partner poses a threat to your safety before they will grant an Occupation Order.

What happens to the mortgage after divorce?

Leaving the property doesn’t mean you’re no longer responsible for the mortgage repayments. If the mortgage is in both names, both parties will be liable for mortgage repayments until the mortgage is transferred into one name regardless of who lives at the property. Your lender will likely require the party keeping the mortgage to undergo an affordability check to ensure they can afford the repayments before they will agree to transfer the mortgage into one name. If unsuccessful, your only option may be to sell the property. It is important to keep your lender informed of any changes in circumstances during the divorce process, especially if you’re struggling to keep up with repayments. The more you communicate with your lender, the more understanding they are likely to be of your circumstances. They may be able to speak to your ex-partner for you about keeping up with repayments, arrange a payment holiday or lower your monthly repayments for a short while.

Who gets the house in a divorce with children?

In any divorce case, the needs of any children the parties have will always be prioritised above all else. The Court believes that it is generally best for children to stay in the matrimonial home, and may therefore determine who gets the house based on who will be responsible for the children’s day-to-day care. This also means the Court usually will not order the sale of the property unless there is no other option. This doesn’t mean that the parent who leaves will be left with nothing. As mentioned above, the Court can order that the remaining parent buys the other parent’s share or, if a Mesher Order is granted, the leaving parent will be entitled to a proportion of the sale proceeds when the property is eventually sold. If you’re worried that your ex-partner may try to restrict when you can see your children, you can also create a Child Arrangements Order that dictates when and where you spend time with them.

Do we need to go to Court to decide who gets the house?

You do not need to go to Court if you and your partner can decide how the property will be divided between yourselves.

Who gets the house if we are not married?

You will not be able to rely on the Family Court to make a decision for you if you and your partner are not married. This also means that if your ex-partner is the sole owner of the property, you do not have any legal right to stay there. If you and your partner both own your home, you will need to decide between yourselves who is going to move out. If you own your home as joint tenants, you will need to agree between yourselves who will remain in the home and who will buy the other person out of the house.

How Starck Uberoi Solicitors Can Help

At Starck Uberoi, we understand how daunting the divorce process can be and how difficult it is to find answers. With us, we ensure every client has a dedicated point of contact with an experienced family solicitor who can answer their queries, provide pragmatic advice and help them achieve the best possible outcome from their divorce. To book an appointment, please call 020 8840 6640 or email solicitor@starckuberoi.co.uk. Our offices are located in Brentford, Ealing, Richmond, London Belgravia and Canterbury, all within easy reach by public transport. Our partner, Raminder Uberoi, can also provide a Notary Public Service at any of our London offices.