Most separating couples reach an agreement about their house. The ones who don’t are usually stuck on the same point: one of you wants it sold now because they need the deposit to buy again, the other wants to avoid the children having to move schools halfway through the year. Both positions are reasonable.
We know an argument about the house is about more than it seems. It forms part of your whole financial settlement, alongside pensions, savings and any debt, and it is usually the asset that decides how everything else is divided. It’s little wonder that it’s such a common sticking point, but here we will walk through the options available to separating couples.
Who is liable for the mortgage of the home?
Disagreements about the family home can take months, especially if they go to court, and the mortgage won’t wait. If the mortgage is in joint names, you are both liable for the full amount, whether you are both living there or not. One missed payment affects both credit files.
Generally, the holding position is that whoever stays in the property covers the mortgage and bills, with an adjustment made later in the settlement to reflect that. That is something you both must agree on, not just an automatic rule, so be sure to put it in writing.
Where money is tight, tell a lender early. Most will discuss a payment holiday or a temporary switch to interest-only, and they would far rather hear from you than have to send out arrears letters. Our guide to who gets the house in a divorce covers the underlying rights in more detail, including where the property is rented.
What the court considers when deciding what to do with a house following divorce
If you cannot agree and one of you applies to court, you may assume a judge starts with an assumption of a 50/50 split and works through factors from there. In actuality, they consider what is stated in section 25 of the Matrimonial Causes Act 1973: that is the resources each of you has, your needs, your ages, the length of the marriage, your earning capacity, the standard of living during the marriage, and the contributions you each made.
Before any of this, however, the court’s first consideration is the welfare of any child of the family under 18. Housing the children comes before anything else, and the parent they live with most of the time will likely have a larger share of the equity, or the right to stay in the property for a period.
If one of you bought the house before the marriage, or funded the deposit with an inheritance, that can also affect how it is treated, but there is no guarantee it will be treated as yours alone. The court looks at how the two of you dealt with the asset over time, and whether your conduct shows you treated it as shared.
The orders a court can make about a family home
Couples reasonably assume the matter comes down to selling or not selling the home. However, a judge has more options available depending on the situation, which may break a stalemate between two fixed positions with a sensible middle-ground.
If you and your spouse have reached a standstill over the house, a single conversation with a solicitor will usually tell you whether your position is realistic and what decision a court would be most likely to come to. Our financial settlement solicitors have over 90 years’ combined experience in family law. Get in touch to arrange a discounted initial consultation.
Transfer with a buyout
The property is transferred into one name and the other receives a lump sum, a larger share of the pensions or savings, or a charge over the property. This is done under a Property Adjustment Order (section 24). It only works if the person keeping the house can take on the mortgage in their sole name, which is for the lender to decide.
Order for Sale
The court orders the property sold and sets out how the proceeds are split, under section 24A. They can fix the timing, name the estate agent, and lay out what happens if one of you obstructs the sale.
Mesher Order
A Mesher Order postpones the sale. One of you stays in the house, usually with the children, and it is sold later when a trigger event happens. Common triggers are the youngest child turning 18 or finishing full-time secondary education, the resident parent remarrying or moving in with a new partner, or an agreed date. You each keep a defined share of the eventual proceeds.
The appeal is obvious: the children stay put. The difficulty is that it keeps you financially tied together for years. The person who moves out has capital they cannot reach, and there’s always the chance of a trigger event happening at an awkward moment. Someone in their fifties waiting on a sale may struggle to get a mortgage when the money finally comes through.
The trigger events and exit terms for a Mesher Order need drafting with care and consideration from both parties if it is going to hold up. We have a dedicated guide that covers how a Mesher Order works in full, from trigger events to who pays the mortgage.
Martin Order
A Martin Order is the less common alternative to a Mesher Order that is used mainly where there are no dependent children. One spouse has the right to live in the property for life, or until they remarry or move in with a new partner, and the sale happens after that.
Can my ex force me to sell the house?
Neither you nor your partner can compel a sale of a jointly owned home simply by insisting on it, and changing the locks or putting it on the market without agreement will get you nowhere but trouble.
What your spouse can do is apply to the Family Court for a financial order, from which the court can then order the sale. Equally, if your spouse is refusing to sell a house you cannot afford to keep, or refusing to engage at all, an application to court is the route that forces the issue. Judges look unfavourably on anyone sitting on an asset to apply pressure.
Can my ex evict me if the house isn’t under my name?
Being married gives you Home Rights under section 30 of the Family Law Act 1996, even where the property is in your spouse’s sole name. Home Rights give you the right not to be evicted from the family home without a court order, and the right to apply to return if you have already left.
To be protected by this however, you need to register a Home Rights Notice with HM Land Registry, which stops your spouse selling or remortgaging without you finding out. Registration is free and done via a HR1 form. If there is any prospect of your spouse dealing with the property behind your back, do this as soon as possible.
Where living together has become unsafe or unmanageable, an Occupation Order can regulate who lives in the property, or exclude one person from it. These come under Part IV of the Family Law Act 1996 and are a separate application from your financial settlement. Our experienced solicitors can act with swiftness and sensitivity to help you apply for an Occupation Order or any other kind of injunction.
How to resolve a disagreement about the family home without going to court
Court is our last resort, but we will be honest when it is necessary. For most people it isn’t, and a disagreement about the house can often be resolved once both parties understand the numbers.
Before you can apply to court for a financial order, you will typically need to attend a Mediation Information and Assessment Meeting (a MIAM), unless the matter is urgent or there has been domestic abuse. A MIAM assesses whether mediation could work in your case, but it doesn’t commit you to anything.
Since April 2024, the Family Court may also take a failure to attend non-court dispute resolution into account when deciding who pays the costs of financial remedy proceedings, so engagement is strongly advised.
Other options that may help break a financial deadlock include:
- Mediation, where a mediator helps you both work through the figures, with your own solicitor advising you separately
- A round-table meeting between you, your spouse and both solicitors
- Collaborative practice, where everyone signs up to reaching an agreement without court
- Resolution Together, where one solicitor advises you both
- Arbitration, where you appoint an arbitrator to decide the point for you. This is binding, but far quicker than waiting for a court listing.
We discuss each of these as well as other approaches in more detail on our methods page.
Regardless of the approach you settle on, the agreement needs to be turned into a financial order and approved by the court. Without one, the financial claims between you stay open, and an ex-spouse can make a claim against you years after the divorce. Two things will help with coming to an agreement above all:
- A formal valuation of the property from a single agent or surveyor that you can both agree on.
- A decision in principle from a mortgage lender before anyone commits to a buyout.
Common questions
What if I want to keep the house but cannot get a mortgage on my own?
Speak to a broker, as some lenders will take maintenance payments into account as income. If a sole mortgage is not achievable, a Mesher Order, a longer transfer timescale, or a smaller buyout funded from elsewhere in the settlement are all options to research and put on the table.
Does moving out weaken my claim to the house?
Moving out does not give up your interest in the property or your share of the equity. It can change the day-to-day picture, particularly around where the children are based, so take advice before you act, and if you are not a legal owner, register your Home Rights first.
We have agreed everything ourselves. Do we still need a solicitor?
You will still need your agreement drafted as a consent order and approved by a judge to make it binding, and a solicitor should check it before you sign. An agreement may be fair when it is made, but circumstances can change unpredictably, and we have seen many agreements that have fallen through or been unenforceable once needed.
Speak to a financial settlement solicitor in Bristol
Our team advises on financial settlements and property negotiations across Bristol, Clevedon and Portishead, and we will always be upfront with you on whether what you are asking for is achievable. If a straight sale is not the answer, we set out the alternatives and draft them so they will hold up down the road.
You don’t need to have decided anything before you speak to us. You don’t need your spouse to agree, and you don’t need your paperwork in order. Just come as you are, tell us your side of the story, and we will help from there.
Your initial consultation runs for up to 90 minutes, for a discounted 60-minute flat rate, and we’ll be clear about costs from the start so there are never any nasty surprises. All of our solicitors are members of Resolution, which means our starting point is always to keep conflict down and keep you out of court when it’s possible.
Book your initial consultation, or call your nearest office:
- Clifton: 0117 375 1780
- Portishead: 01275 285 414
- Clevedon: 01275 741 202