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Who gets the house in a divorce?

Reasons to choose Wilson Browne

Getting divorced can, sadly, be a very difficult experience for many people.

In addition to the emotional stress involved in ending a long-term relationship (which may be especially acute if the couple have children), the partners’ assets (including money, investments, property, and possessions) need to be divided up in as fair a way as possible.

For many couples, the most valuable asset they own is likely to be their home. Decisions taken under great pressure, in the midst of a divorce, over what will happen to the property could have far reaching consequences for the couple and their children.

We will look below at the factors which can determine who gets the house in a divorce in England and Wales.

What are the grounds for applying for a divorce in England and Wales?

There is one ground for divorce in England and Wales and that is the irretrievable breakdown of the marriage.

Recent legislation has simplified the process of applying for a divorce in an attempt to reduce the stress and acrimony that can occur.

The introduction of so-called ‘no-fault divorce’ means it is no longer necessary for either party to accuse the other of wrongdoing. Instead, either individual can simply state that the marriage has irretrievably broken down.

What is a financial settlement?

This is the agreement between a divorcing couple over how their assets will be divided up.

It is advisable to begin discussions on the agreement as soon as divorce proceedings start as any dispute could cause a delay to the final order of divorce (previously the decree absolute) being granted.

If a settlement cannot be agreed then one of the options could be to make an application for the court to determine financial matters.

An increasing number of couples are now addressing the issue of finances prior to the marriage itself. In such cases, a couple can agree what would happen in the event the marriage breaks down for example, what happens with the house.

Any agreement can be recorded in a pre-nuptial agreement (or “pre-nup”) and provided the agreement is fair, and the necessary formalities are complied with, a court is likely to uphold any such agreement on divorce.

How is a house divided in a divorce in the UK?

There is no hard and fast rule about how a house is divided upon divorce in England and Wales. Any outcome must be fair and reasonable when taking into account the relevant circumstances of any given case.

At Wilson Browne, we have a successful track record of advising people on all aspects of divorce – including how the house will be divided.

Disagreements can cause delays to the divorce process, leading to ill feelings and costly court hearings. Many clients have saved time, money, and stress, by drawing on our knowledge and experience at an early stage.

Is my spouse entitled to half my house?

No set of circumstances are the same and the court has a wide discretion when it comes to deciding how a couple’s assets (including their home) should be divided.

The family home will nearly always be considered a matrimonial asset and the case law would suggest that the starting point in dealing with matrimonial assets will be an equal split, as equality and fairness go hand in hand.

That being said, there may be other circumstances in the case that would mean an equal division of the house may not in fact be a fair outcome.

What factors will influence a court’s decision over the home?

It is preferable for the couple to reach an agreement over who gets the house without the need for a court hearing, as by doing so they are likely to reduce the stress and cost of the divorce.

We have seen above how the court has a wide discretion when dealing with finances on divorce.

The role of the court is to achieve a fair and reasonable outcome, measured against the yardstick of equality. In determining what is fair and reasonable, the court will first consider the needs of any child of the family, as well as the factors listed at s.25 of the Matrimonial Causes Act 1973, namely:

  1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
  2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  3. the standard of living enjoyed by the family before the breakdown of the marriage;
  4. the age of each party to the marriage and the duration of the marriage;
  5. any physical or mental disability of either of the parties to the marriage;
  6. the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
  7. the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
  8. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

If possible, the court will look to achieve a clean break and ensure that both parties can be suitably rehoused.

These factors are considered in more detail below.


The court’s first consideration will be to ensure that the housing needs of any children of the family can be met.

In more limited asset cases, it may be that the resources of the parties do not stretch beyond being able to meet the needs of the primary carer.

Sometimes, the court will direct that one party is to remain in the home until the youngest child turns 18 at which point, the property would be sold and the proceeds split accordingly.


Financial positions

The court will look at the financial position of both parties to include assets, liabilities, and income.

Looking at this in the context of a home, there may be situations where one party earns significantly more than the other or holds significant savings/investments.

This may be because they have a more well paid job, or it may be because one party works part time or stays at home to look after children.

In the above scenarios, there may be justification for one party receiving more than half the equity in the home.

Other financial issues that many affect the split include cohabitation with a new partner, remarriage, ability to obtain a mortgage, availability of suitable alternative housing and childcare arrangements.


The subject of contributions is one often raised by clients. The law recognises that parties can contribute to a marriage in different ways.

One party may make a greater contribution financially, whereas one party may make a greater contribution to looking after the home and family. Case law makes it clear that there is to be no discrimination against someone who has taken the traditional role of homemaker and contributed less financially.

This means that in a long marriage, contributions may be of little relevance in terms of determining a fair outcome.

However, in the case of a short, childless marriage, there may be minimal assets that are matrimonial in nature and the needs generated by the marriage may be very different to those generated by a long marriage.

In such a scenario, financial contributions could become more of a relevant factor in assisting the court as to a fair and reasonable outcome.

Standard of living prior to divorce

The court will seek to minimise any reduction in the standard of living during the marriage.

Separating will often inevitably result in some fall in the standard of living as separation, by its very nature, is a process of turning one household into two.

That being said, where one party is making needs based claims, perhaps for maintenance, alternative housing, a vehicle or otherwise, the standard of living enjoyed during the marriage can be a useful reference point.

What might be a reasonable need in one marriage, may be completely unreasonable in another.

Length of marriage

In general terms, the longer a couple has been married, the more likely that all assets, including the home, are going to be matrimonial in nature and subject to equal sharing.

In the case of short marriages, it is more likely that a greater proportion of the assets will be non-matrimonial and any award based on needs, rather than equal sharing.

It is worth noting that a court will likely take into account seamless pre-marital cohabitation when considering fairness.

For example, if a couple cohabit for 20 years before marrying, then separate after 2 years of marriage, the court are likely to treat it the same as a 22 year marriage.

Age of both parties

Age can become a relevant factor in certain situations when considering needs.

In the context of the home and rehousing, if there is a significant age gap and one party is approaching retirement, they may have a vastly reduced ability to obtain a mortgage meaning that they need a greater sum than the other to rehouse (ie a bigger deposit).

Can my ex force me to sell the house?

If the home is jointly owned then it cannot be sold without each party’s consent, unless by order of the court.

Where the home is owned in the sole name of one spouse, it is important that legal advice is obtained by the other party in order to protect their interest.

If appropriate steps are not taken, the owning party could remortgage or even sell the property, creating potentially significant issues.

So, who gets the house?

The short answer to the question is “it depends”! Couples are free to try and reach a fair solution between themselves or via mediation or if this is not possible, to make an application to the court.

As we have seen, the court has wide powers when deciding on an appropriate outcome in any given case. Generally, the outcome in relation to the house will fall into one of the following categories:

  1. The property will be sold and the proceeds split equally (or in some other proportion as determined by the court).
  2. The property will be transferred to the sole name of one of the parties, with the other party being released from their obligations under any mortgage and potentially receiving a lump sum in exchange for surrendering their interest.
  3. The property will remain in joint names and be sold at a later date (deferred order for sale), with the proceeds divided equally (or in some other proportion as determined by the court).

In any case, the house will not be considered in isolation but rather as a factor alongside all other issues in the case.

With potentially so many different outcomes, it is vital for anyone going through a divorce to seek expert legal advice at the earliest stage possible.

Our team of family law solicitors have been recognised by the Legal 500 (a who’s who of the legal profession) and will be delighted to use their expertise to guide and support you.

We will work with tact, sensitivity, and integrity as we offer clear, practical advice based on our wealth of knowledge.

Our aim is always to avoid the stress and expense of a court hearing wherever possible and we will support you in seeking an amicable agreement with your partner that will allow you both to move on with your lives.

With offices in Corby, Higham Ferrers & Rushden, Kettering, Leicester, Northampton, and Wellingborough we can offer a friendly face-to-face meeting at a convenient location and will also be happy to make home visits for clients with mobility issues.

Please call on 0800 088 6004 or complete our online contact form.

Joe O’Brien


Joe O’Brien

Senior Associate

Joe has specialised in family law for nearly 10 years. He has experience in all manner of family disputes with a particular interest in financial remedies for divorce and Children Act proceedings. One of Joe’s strengths is being able to negotiate early resolutions where possible,…