While marriage is intended as a commitment to last a lifetime, over a third of married couples in England and Wales don’t get their ‘happily ever after’.

With divorce being such a common reality, it’s only natural to wonder what would happen to the family home if you and your spouse split up.

Who would get the house? Would you have to sell up?

There’s no one-size-fits-all answer, as property division during a divorce depends on several factors.

However, we’re here to help you understand how property is divided under English law, explain your options, and offer practical tips to help you reach a fair resolution.

Who decides who gets your home?

In England and Wales, the division of property during divorce is guided by a principle of fairness, but that doesn’t always mean a 50/50 split.

The courts will consider several factors when deciding who gets what, and the primary focus will be on meeting the needs of any children involved and both parties.

Factors that influence the decision include:

• The length of the marriage.
• The income, earning capacity, and financial resources of each party.
• Contributions made by each spouse, both financially and non-financially (such as raising children or managing the household).
• Each party’s needs, including housing, health, and future financial stability.

However, many couples choose to reach an agreement without going to court, either through negotiation, mediation, or arbitration.

It’s usually quicker, cheaper, and less stressful. But regardless of how you decide to go about it, the house is often one of the trickiest assets to deal with.

What are your options?

When it comes to dividing the family home, there are three main options to consider:

1. One spouse keeps the home

One spouse may wish to keep the property, especially if children are involved, to provide them with stability.

In this scenario, the spouse keeping the house usually buys out the other’s share.

This can be done by either remortgaging the property to release the necessary funds or offsetting it against other assets, such as pensions or savings.

However, bear in mind that obtaining the lender’s consent is crucial if there’s a mortgage involved.

2. Sell the home and split the proceeds

Another option is to sell the property and divide the proceeds between both parties.

Remember, it doesn’t have to be an even split. What each spouse receives can depend on the contributions made to the home – both financially and otherwise –the needs of each spouse and other factors.

Selling the property can be a particularly suitable option for couples who don’t have any children as it provides a clean break and allows each spouse to start afresh.

But before going down this route, it’s worth considering the costs of selling (such as estate agents, legal fees, and potential tax implications) and whether it’s the right decision for any children involved.

3. Transfer ownership to one spouse, delaying the sale

Sometimes, couples agree to postpone selling the home, allowing one spouse (often the primary carer of the children) to live there for a set period.

This could be until the children reach a certain age or finish school, at which point the house is sold, and the proceeds divided.

This option can give stability to the family while still planning for a future division of assets.

Things to consider when dividing property

Whichever option you choose, there are a few key things to keep in mind to ensure the process goes smoothly.

If there’s a mortgage on the property, the lender will need to agree to any changes in ownership, and they’ll want to ensure that the spouse keeping the property can afford the mortgage on their own.

If you’re keeping the house but don’t have the funds to buy out your spouse, you may need to release equity.

This is where you remortgage to access some of the money tied up in the property.

Equity release can be useful, but it’s not for everyone, and you should seek expert advice before considering this option.

Under English law, transferring property as part of a divorce settlement can be exempt from stamp duty, but only if the transfer occurs as part of a legally binding court order or financial settlement.

While stamp duty may not apply, it’s important to be aware of other potential tax implications, such as capital gains tax (CGT).

Tax implications are worth discussing with your solicitor to avoid any surprises down the road.

How can we help?

Whether you’re negotiating who keeps the house, need help with remortgaging, or are looking to sell and split the proceeds, we’ll work to ensure the process is as smooth and stress-free as possible.

We know that every divorce is unique, and so are your property needs.

That’s why we offer personalised, tailored advice to help you reach the best possible outcome—one that protects your financial future and ensures a fair resolution for both parties.

If you’re going through a divorce and need expert advice from our Family Law Solicitors, please contact David Smith (dsmith@ansons.law ).