My house is my castle: what happens to the family home if you separate?

What happens to the family home in divorce?

Typical lawyer's answer: it depends on the facts. The family home is usually the largest asset in a financial settlement. This piece deals with the options available to married families and those in civil partnerships going through divorce. For ease of reference, I refer to marriages throughout.

If you are married, it may not matter whether the family home is in your name, joint names or the other person's name. Under the Matrimonial Causes Act 1973, the court has wide powers to order the sale, transfer or delayed sale of the family home. What happens will depend on the circumstances you are in and other aspects of the settlement.

What the court considers about the family home in divorce

When deciding what happens to the family home in divorce, the court will typically weigh up:

• Whether there are children, and if so, their ages and any need for continuity of schooling and support networks
• What each party can afford by way of mortgage or rent post-separation
• Each party's reasonable housing needs, including whether moving is realistic
• The length of the marriage and how the property was funded
• Any wider assets available to meet each party's needs

If you have children, continuity may be a key issue: you may wish to stay in the family home to provide stability and familiarity. Location can be key as it maintains connections to schools, friends and support generally. But this is one factor and must be balanced against the needs of the other party.

What happens will vary, but will be affected what can be afforded: how will the mortgage or rent be paid post-separation?  The best solution may be to stay in the property, but if it is unaffordable, that is unlikely to happen.

If you need to move

If you must move, similar considerations apply: the location must be sensible and take account of schools and allow each parent to spend time with the children. As part of this process, it is common for each party to be asked to put forward property particulars for suitable alternative housing, so that the court, or the other party, can see realistically what is available within your likely budget. A realistic view needs to be taken by both, not least of the fact that both parties will need reasonable accommodation.

If the family home is sold, there may be little option but for an unequal share of the sale proceeds. This will have to be justified and is not automatic: it will take account of what each of you can borrow and afford to repay by way of a mortgage.  If this happens, there may also be a trade-off in other areas: the party receiving less may have a more expensive mortgage and so may not be able to pay maintenance to you (note this does not include child maintenance which is not reduced in this way unless you agree to do so).

If you do not have children and the marriage was short, it is highly likely that the property will be sold, and each will get what they put in. Again, this will vary and could result in an equal or unequal division, especially of the deposit was paid only by one of you.

Options for retaining the family home

There are several ways a family may keep the family home in divorce rather than selling immediately:

• Delayed sale (Mesher order): the property is retained, usually so a parent with young children can remain there, and its sale is postponed until a defined trigger event, commonly the youngest child turning 18 or finishing full-time education. At that point, the property is sold and the proceeds divided according to the agreed shares. Mesher orders are made under section 24 of the Matrimonial Causes Act 1973 and create a trust of land under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
• Buy-out: one party buys the other's share and transfers the property into their sole name. This requires taking on the mortgage in full and paying the other party their share, usually through a combination of savings, mortgage capacity and sometimes family support.
• Outright sale and division: where retention isn't practical or affordable, the property is sold and the proceeds divided, whether equally or unequally depending on the circumstances.

As can be seen, finding the right option can require a lot of preparation and this is one element of a settlement. Housing is part, but not the whole of your needs, and so must be considered along with the other elements of a financial settlement.

If you wish to discuss this further, please contact one of the team

Frequently Asked Questions about the family home in a divorce

What is a Mesher order?

A Mesher order is a court order that postpones the sale of the family home in divorce, usually until the youngest child turns 18 or finishes full-time education. It is made under the Matrimonial Causes Act 1973 and creates a trust of land under TOLATA 1996, with both parties remaining tied to the property, including its mortgage and upkeep, until the sale takes place.

Should you leave the family home in divorce?

In most cases, leaving the family home does not affect your legal entitlement to a share of it, so this decision should be based on practical and safety considerations rather than fear of losing your claim. However, if children are involved, staying put can sometimes support continuity and strengthen your position on future arrangements for them, so it's worth taking advice before making this decision, particularly where safety isn't a factor.

Do I have to sell the family home when I get divorced?

Not necessarily. In many cases, particularly where there are young children, it may be possible to retain the family home for a period through a delayed sale, or for one party to buy out the other's share, rather than selling immediately.

What are property particulars and why might I need them?

Property particulars are details of homes available on the market that would meet your, or your former partner's, reasonable housing needs after separation. The court, or your solicitors during negotiation, may ask you to provide these to show what realistic rehousing options exist within a likely budget.

Will I automatically get 50% of the family home?

Not automatically. Whilst equal sharing is often the starting point for marital assets, the division of the family home in divorce will depend on needs, how the property was funded, the length of the marriage and the wider financial settlement, and may result in an unequal split.