What happens to the family home when we divorce

The family home is often one of the first practical concerns for divorcing couples and can be a primary cause of conflict. In fact, 37% of married adults in England and Wales believe that if they were to divorce, they would disagree on what happens to the family home.

Not only are there practical considerations that come with dealing with the family home on divorce, but this is often an emotional decision. It’s important, therefore, that you carefully consider your options and find a solution that works for you and your family. There are a lot of things to take into consideration, so to help you understand a bit more about the process we have provided answers to some of our most commonly asked questions about dealing with the family home on divorce.

‘I’ve got so much to think about, and I am struggling with the emotional elements of dealing with our house. To help keep us on track, what are the practical considerations we need to think about?’

Equity

You’ll need to consider how much equity there is in the family home. Equity refers to the amount the home is worth, less any outstanding mortgage that you owe and any notional costs of sale. If you have a sizeable mortgage, you and your spouse may not own much of the equity in the home. This is an important consideration when thinking about whether each of you and your spouse can afford to rehouse, or if it’s financially sensible for you to keep the family home.

Children

If you have any children, the needs of the children will be the first consideration when deciding what should happen to the family home. This is dealt with in further detail below.

Do you and your spouse agree with how the home should be dealt?

It’s important to think about what both you and your spouse want to do with the family home and, if you fall within the 37% of married people who expect they would disagree with their spouse about how the family home should be dealt, it’s important to consider why your views differ. Mediation is a great solution for navigating discrete points of disagreement between divorcing couples.

Ownership of the family home

Though in principle, it doesn’t matter whose name the family home is held in, it’s often important to understand the ownership structure so you can make informed decisions throughout the divorce process. If you do not know, you may require specific legal advice to assist you with understanding how your property is held. The most common ownership structures for the family home are as follows:

• Joint tenants: when a property is held as joint tenants, if one owner dies, the other is automatically entitled to that persons share of the property regardless of any will. This is the default position, so if you and your spouse didn’t specify that you wanted to hold the property in unequal shares, it’s likely that you are a joint tenant. In theory, both you and your spouse each own the property in entirety. For the purposes of the ownership on divorce, you’ll be considered, for the purposes of your personal financial disclosure, to have 50% of the family home if you are a joint tenant.
• Tenants in common: if the property is held as tenants in common, you and your spouse will have specified the percentage shares in which you hold the family home. If one owner dies, that person can leave their share of the property to whomever they choose in accordance with their will. If you hold the property as tenants in common, you’ll each own a specific percentage of the family home subject to any agreement that you both put in place. The share in which tenants in common own a property can become a contentious issue in the event of relationship breakdown and requires specific legal advice.

‘All of that is helpful…but most of what I understand about dealing with the home focuses on selling. What if we want to continue owning our house?’

You and your spouse can continue to own your family home after you get a divorce, if this is something that you think would work for you and your family. It’s relatively common for the main family home to be kept whilst any children of the family are still school age, and the property sold later. It may be that you and your spouse wish to keep the home in joint names or transfer the property into the sole name of one of you, with a payment being made to the transferring spouse at a later date. A court can order a transfer of the family home if this is deemed to be necessary in your case.

‘On second thoughts, I don’t think continuing to own the house is going to work for us. Can I force my spouse to agree to the sale of the home?’

If you’re not within court proceedings and you and your spouse own the family home jointly, you cannot force the other person to sell the family home. You will need to reach an agreement as to how the home is to be dealt with if you wish to avoid court involvement.

‘I am worried about our children who have lived in our family home their whole lives, how are they factored in?’

If you have children in the family, where they are living is most couple’s first thought. Ideally, children need a home with both of their parents and the primary focus ought to be limiting any disruption caused to them. For some families, the best approach is to keep the family home at least whilst the children are young. But this doesn’t work for all families and may not be financially viable. It’s important to seek expert legal advice to find a solution for your whole family.

It’s also important to note that in any financial proceedings on divorce, the interests of the children are the first concern. This can be the deciding factor in some cases when it comes to whether the family home is sold. If the primary care giver keeps the family home, it may be that the other spouse will get more of the other assets to balance things out.

‘I hope that me and my spouse can agree what to do with our home. But if we aren’t able to agree, what can the court order?’

If it’s possible for you and your spouse to reach an agreement on how the home should be dealt, this will save you and your spouse the time, costs and emotional toll that is associated with court involvement. However, if you are unable to reach an agreement either between yourselves or with the support of a qualified mediator, it will be down to the court to help resolve this matter. The options that are available to the court when it comes to dealing with the family home are relatively limited:

• Order for sale: the court can order the sale of the family home. This may be required where assets are limited and the equity in the home needs to be released to meet the needs of the parties.
• Transfer of the home: it may be that the court deems the most sensible solution to be that the family home is transferred into the sole name of one of the parties. Depending on the circumstances of your case, a lump sum payment may be made by the party retaining the home, or the party losing their ownership in the home receiving.

The court can also make orders in relation to the payment of the mortgage or other outgoings on a property.

Our family lawyers are experienced in dealing with financial proceedings on relationship breakdown. If you need any advice, please contact us and we will be happy to help.

Editor’s note

All figures, unless otherwise stated, are from YouGov Plc. Total sample size was 2028 adults, of which 833 England and Wales adults who are married, in a civil partnership or separated. Fieldwork was undertaken between 22nd – 23rdJanuary 2024.  The survey was carried out online. The figures have been weighted and are representative of all GB adults (aged 18+).