Divorce And Property

Who gets the house in a divorce?

The family home is usually the biggest asset to divide in a divorce and can certainly be the most emotive. This page answers your questions concerning the family home and other properties you may own which will be considered in a divorce settlement.

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How is a house divided in a UK divorce?

You have a wide range of options when deciding how to divide the family home.  This could include:

  • Buying your spouse out of their share of the home;
  • Selling the home; or 
  • Postponing a sale until your children are older.  

Depending on the value of any other assets, it may also be possible to offset one person’s interest in the home against another asset.  For example, perhaps one of you will keep the family home in exchange for the other keeping a pension fund or holiday home.

Who gets the house in a divorce with children?

There is no general rule over who will typically keep the family home in a divorce financial settlement.  The court must take into account a number of factors when deciding this, including:

  • The needs and arrangements for children;
  • The age, health and earning capacity of each spouse;
  • The assets and available resources;
  • What each spouse needs;
  • The length of the marriage and what each spouse contributed;
  • The standard of living of each spouse; and 
  • Any negative conduct that would be inequitable for a court to ignore.

The first consideration for the court will always be the housing needs of the children.  We can advise you on your rights, which can be especially important if the family home is not held in your own name.

Property & Divorce FAQs

What is matrimonial property?

Matrimonial property usually includes the family home and other assets that have been acquired or brought into the marriage by a spouse, such as holiday homes, investments properties, savings, investments, cars, boats, art collection etc.

It can also include your pension that has been accumulated during the course of the marriage.

An argument can arise as to what is defined as matrimonial property and some property may be excluded from the ‘marital pot” such as pre-marital property or an inheritance.

How is property dealt with in a divorce?

For most people contemplating divorce, one of the main concerns will be what happens to the family home. You may be worried about where you and your children will live, or if you could be forced to sell your much-loved home.

There may be other property that needs to be taken into account in any divorce settlement, such as inherited property, buy-to-let investments, or a holiday home.

If you entered a prenuptial agreement, it is important to provide this document to us when we meet. We will check if it covers all property and that there have been no material changes from the time the prenuptial agreement was signed, as this could impact its implementation.

Our experienced family law solicitors answer some of the frequently asked questions our clients have in regard to their property portfolios if there is not a prenuptial agreement.

What property is taken into account in a divorce settlement?

Any property in which you have an interest, own in your sole name, or own jointly with your spouse must be disclosed. You must also disclose any interest in assets jointly owned with someone outside of the marriage.

Once full and frank disclosure has been made (by both parties), we will advise you on which assets will be taken into account for division. Full and frank disclosure is necessary as you need to know what is in the pot, before it can be divided.

Generally speaking, any assets that you have acquired or built up during the course of your marriage will be considered ‘matrimonial property’ and taken into account for division. If a property is owned by you and someone other than your spouse, it is only your share in that asset which will be taken into account.

The house that you and your spouse use as your main residence will certainly be considered ‘matrimonial property’ as it is the family home. This is the case regardless of who paid the deposit or the mortgage.

How is the family home allocated in a divorce?

The starting point in any divorce is that the family home should be divided equally, but there are a number of circumstances when this may not occur. For example, if one spouse:

  • continues to live in the house with young children of the family;
  • needs a larger share of the sale proceeds to rehouse the children;
  • has a disability and therefore a greater need for housing provision;
  • contributed significantly more to the deposit and mortgage than the other person, and the marriage was a very short one.

Before knowing how the house is likely to be divided, we will need to obtain a valuation of your home. We have a network of experienced valuers and can select the one most appropriate for your property type and location. Once we receive the valuation and full disclosure of all assets owned by you and your spouse, we will advise you on what is likely to happen to the matrimonial home.

If you wish to retain the family home, then we can advise you on your options, which may include:

  • raising a lump sum of money to buy out your spouse’s interest;
  • giving up an entitlement to a different matrimonial asset, such as your spouse’s pension, in exchange for obtaining the home by way of an offset; or
  •  mesher order whereby the house is sold at a later date and then the proceeds are divided.

Do I lose my rights if I move out of the family home?

No. If you decide that you can no longer live in the former family home, then you can rest assured that moving out will not take away your rights over the property.

In some circumstances moving out is the sensible thing to do to protect your mental health. It can even benefit relations in the long run, especially where children are involved, as you may be protecting your children from witnessing parents’ arguments.

If you do leave the home, we recommend that you take your personal possessions and financial records with you. Despite still having a legal interest in the home, we recommend you do not return unannounced. It is best that you make arrangements with your spouse if you have to return for any reason.

If you have suffered domestic abuse, you may need to move out to escape. In these circumstances, you should seek urgent legal advice as it may be possible to obtain a court order removing of your spouse from the home instead of you having to leave.

What if the property is not owned in joint names?

If the house is owned by only one of you, it does not impact on both of you still having a legal interest in the house.

If your spouse owns the property in their sole name, it is important that you seek urgent legal advice to ensure your interest can be protected. We can take steps to register your interest with the Land Registry to prevent your spouse from selling, transferring or remortgaging the house without your knowledge.

Does my spouse have rights to property after divorce?

Divorce does not by itself end a spouse’s rights to property even if you have agreed between yourselves who will get what. In order to ensure that your spouse cannot return years later and make a claim over your property, it is important that you have a consent order. This is an order from the court formalising the agreement reached between you and your spouse.

If you cannot reach an agreement with your spouse, then you will have to apply to court for a judge to determine how the matrimonial assets should be divided. A judge’s determination will also ensure that your spouse does not have rights to the property after your divorce is finalised.

What happens to inherited property in a divorce?

This will depend on a number of factors, including when the property was received, how it has been used, whether it has been mixed and what the needs of each spouse are in comparison to what other matrimonial assets are available. Please visit our inherited wealth page for more information.

What happens to investment properties in a divorce?

An investment property is treated the same as any other asset. A determination will initially be made as to if it is matrimonial property or not. If it is deemed to be matrimonial property then, regardless of whose name the property is held in, it will be considered to be part and parcel of the matrimonial pot to be divided between spouses.

What happens to a holiday home in a divorce?

Holiday homes will be taken into account if they are deemed to be matrimonial property. If your holiday home is within the UK then the court can make an order for its sale or transfer.

If your holiday home is overseas, it is still possible for the court to make an order for its sale or transfer, however if this is not done, it can be a complex task to enforce the court order in a foreign jurisdiction. If you find yourself in this situation it is vitally important that you obtain early legal advice.

How can we resolve our divorce property dispute?

Firstly, agreement should try to be reached over making sure any mortgage is paid, and buildings insurance covered. You do not want to risk losing the house, or your share in its value, to a repossession or uninsured property damage.

Next, once you and your spouse have both made full and frank financial disclosure, we can advise you on what is likely to happen to the family home. At this stage, it is wise to try and reach an agreement with your spouse, either directly, with the help of a mediator or via solicitors. If an agreement can be reached, we will draft the agreement in a deed of separation and/or consent order.

If agreement cannot be reached after attempting mediation, then we can represent you in court proceedings.

When is a deed of trust helpful?

Deciding if/when to sell the family home it is frequently a major issue to resolve.

One option is to agree to continue to own the property for a period of time, say, until the children have finished school.  This arrangement is often reflected in a Trust Property Deed.  It is important to set out the terms of that continued ownership and occupation in a legally binding way, for both parties.  Some initial considerations with regards to this arrangement are set out below.

The Trust Property Deed would cover matters such as:

  • The choice and location of the property and defining the type of property to be purchased.
  • Who pays the purchase costs.
  • Who the trustees are, their charges and the mechanism for changing them.
  • Is there provision for an alternative replacement property to be purchased if the Occupying Parent (OP) wanted to move.
  • Terms of occupation.
  • Dealing with a change of circumstances (for example, whether a sale is triggered if the OP remarries or cohabits or the child moves to live with the other parent).
  • Who pays for external and internal repairs and decoration.
  • Who pays any mortgage, service charges and ground rent.
  • Who pays insurance and tax expenses.
  • Who pays the utilities, Council tax, internet.
  • Whether the OP should provide an account of expenditure.
  • Whether the OP can buy the other parent out at the end of the term

The creation of a Trust property gives rise to tax and therefore it is important that clients have that advice early on, to factor that into their financial discussions.

How Osbornes can help?

When it comes to considering your property on divorce it is essential that you obtain early expert legal advice. Our expert London based divorce lawyers have experience in representing and advising clients on all aspects of divorce including the division of the family home.

If you are overseas or outside London, we have high-speed video conferencing facilities and a full online service to ensure you are kept up to date and fully appraised of your case and legal options.

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    • Andrew secured me the best financial settlement for my claim. He is a credit to Osbornes Solicitors.

      Family Department Client

    • "Lisa Pepper was recommended to me as non-nonsense and able to help me with a difficult and confrontational divorce. She more than lived up to that – she was practical, collected and always available with a clear opinion and suggestions of how to move forwards. She also was open and helpful about costs and how to mitigate them"

      Legal 500 2021

    • "Mark Freedman is a very capable lawyer, renowned for not being a pushover and pushing his clients’ cases as much as he can, but will always talk sensibly about settlement. He is among the best – tenacious, good judgment and tactically aware."

      Legal 500 2021

    • "Mark Freedman is a dynamic and highly experienced family lawyer who fights extremely hard for his clients and is always in their corner, thus ensuring their loyalty and confidence. In a trial you would always want him on your side."

      Legal 500 2021

    • "She has impressed me as someone who fights my corner but also understands the importance of resolving issues without unnecessary escalation. She is calm and reassuring."

    • "Her mediation practice is exceptional; she is also a great solicitor and has a breadth of skill which is really useful."

      Chambers UK 2021

    • "He is really experienced and wise. He has a lovely manner about him and clients feel safe with him."

      Chambers UK

    • "Jo Wescott is top notch and widely recognised as a rising star throughout the profession. She brings a winning combination of great judgement, an immense work ethic, and a relaxed and charming way with opponents and clients alike. Someone you want on your side”

      Legal 500 2021

    • "Osbornes is pre-eminent for family law in North London. Mark Freedman is a real rainmaker. He is an excellent lawyer and has a top-notch practice"

      Legal 500 2020 - Mark Freedman

    • Mark Freedman is intelligent and personable and has a good selection of high-net work cases.

      Legal 500 2020 - Mark Freedman

    • "Exceptional value for money. Highly competent and reasonably priced. Mark Freedman: one of the best in the field."

      Legal 500 2020 - Mark Freedman

    • "Client-focused. Ready to fight the clients’ corner, but also ready where possible to steer client from unnecessary dispute. Mark Freedman – very experienced, with good instinct for the eventual result. Clients love him and he thinks ahead and directs the client to the best result for the client."

      Legal 500 2020 - Mark Freedman

    • Mark Freedman is a serious player. A fearless family law litigator, who protects his clients’ interests passionately.

      Legal 500 2020 - Mark Freedman

    • Breadth of knowledge and willingness to go the extra mile is what makes it stand out. Mark Freedman – devoted to his clients

      Legal 500 2020 - Mark Freedman

    • Mark Freedman frequently takes on high-value financial and children proceedings that involve complex tax, trust and accounting issues. Sources praise the "tenacity and common sense" he brings to challenging disputes.

      Chambers UK

    • "Mark is very experienced, competent, good with clients and takes a sensible approach to cases. He knows exactly what he's doing."

      Chambers & Partners Directory 2020, Mark Freedman

    • "An exceptional outfit. They take on difficult cases, fight hard and win."

      Chambers UK

    • "The team frequently deals with cross-border estates for high–net-worth individuals."

      The Legal 500

    • "Mark Freedman is a real heavyweight litigator who has dealt with some very significant cases."

      The Legal 500

    • "Mark Freedman boxes clever, keeps his powder dry and when it comes to the end game he negotiates a really good deal."

      The Legal 500

    • "Mark Freedman has a specific focus on high-net-worth divorces and finance cases where there are overseas assets and trusts."

      The Legal 500

    • "Lisa Pepper somehow manages to get parties to settle on matters where there isn’t much hope to start out with."

      The Legal 500

    • "Well-regarded family practice assisting clients with substantial matrimonial disputes and sensitive children proceedings."

      Chambers UK

    • "Mark Freedman draws acclaim for his work in high net worth divorce cases, including those involving company structures, family trusts and overseas assets."

      Chambers UK 2019

    • "He never gives up. He fights for you to the end and has boundless energy."

      Chambers UK

    • Mark Freedman advises high-net-worth clients and knows his stuff.

      Legal 500

    • Highly regarded for his experience as a litigation and mediation expertise, Mark Freedman is tenacious and determined. Clients really feel that he is fighting their corner.

      Chambers UK

    • Andrew handled a very complex, 3 year legal battle for me, with a tremendous amount of patience and professionalism. He is very approachable, always kept me up to date, by phone and e-mail, and responded very quickly to my queries with excellent advice, sound strategic thinking and strong letters to put the other side under pressure. With top contacts for barristers, joint experts and mediation.

      Family Department Client

    • [The Family Law department] handles significant matrimonial finance cases and complex nuptial agreements. Respected for its expertise in cross-border children law matters.

      Chambers UK

    • Mark Freedman represents high net worth clients in complex financial disputes. Sources say that "he's a determined negotiator who'll always do the very best for his clients.

      Chambers UK

    • "Mark Freedman receives a lot of instructions from clients based abroad, often relating to complex divorce proceedings. Sources say: “His main strengths are his enthusiastic passion for the job in hand and his total dedication to his clients.”

      Chambers UK

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    • “Mark Freedman represents high net worth clients in complex financial disputes. Sources say that “he’s a determined negotiator who’ll always do the very best for his clients.”

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    • “Mark Freedman is considered a ‘brilliant lawyer’ and a ‘great tactician’ who ‘will absolutely fight tooth and nail for his clients’. He is noted for his expertise in private children work and high-value divorces.”

      Chambers UK

    • "Exceptional value for money. Highly competent and reasonably priced. One of the best in the field."

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    • "Mark Freedman is intelligent and personable and has a good selection of high-net work cases".

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    • Andrew secured me the best financial settlement for my claim. He is a credit to Osbornes Solicitors.

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    • "Lisa Pepper was recommended to me as non-nonsense and able to help me with a difficult and confrontational divorce. She more than lived up to that – she was practical, collected and always available with a clear opinion and suggestions of how to move forwards. She also was open and helpful about costs and how to mitigate them"

      Legal 500 2021

    • "Mark Freedman is a very capable lawyer, renowned for not being a pushover and pushing his clients’ cases as much as he can, but will always talk sensibly about settlement. He is among the best – tenacious, good judgment and tactically aware."

      Legal 500 2021

    • "Mark Freedman is a dynamic and highly experienced family lawyer who fights extremely hard for his clients and is always in their corner, thus ensuring their loyalty and confidence. In a trial you would always want him on your side."

      Legal 500 2021

    • "She has impressed me as someone who fights my corner but also understands the importance of resolving issues without unnecessary escalation. She is calm and reassuring."

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      Chambers UK 2021

    • "He is really experienced and wise. He has a lovely manner about him and clients feel safe with him."

      Chambers UK

    • "Jo Wescott is top notch and widely recognised as a rising star throughout the profession. She brings a winning combination of great judgement, an immense work ethic, and a relaxed and charming way with opponents and clients alike. Someone you want on your side”

      Legal 500 2021

    • "Osbornes is pre-eminent for family law in North London. Mark Freedman is a real rainmaker. He is an excellent lawyer and has a top-notch practice"

      Legal 500 2020 - Mark Freedman

    • Mark Freedman is intelligent and personable and has a good selection of high-net work cases.

      Legal 500 2020 - Mark Freedman

    • "Exceptional value for money. Highly competent and reasonably priced. Mark Freedman: one of the best in the field."

      Legal 500 2020 - Mark Freedman

    • "Client-focused. Ready to fight the clients’ corner, but also ready where possible to steer client from unnecessary dispute. Mark Freedman – very experienced, with good instinct for the eventual result. Clients love him and he thinks ahead and directs the client to the best result for the client."

      Legal 500 2020 - Mark Freedman

    • Mark Freedman is a serious player. A fearless family law litigator, who protects his clients’ interests passionately.

      Legal 500 2020 - Mark Freedman

    • Breadth of knowledge and willingness to go the extra mile is what makes it stand out. Mark Freedman – devoted to his clients

      Legal 500 2020 - Mark Freedman

    • Lisa Pepper is particularly recognised for her role as a mediator in complex cross-border disputes. Her practice also includes handling prenuptial agreements and issues arising from the dissolution of civil partnerships.

      Chambers UK

    • Mark Freedman frequently takes on high-value financial and children proceedings that involve complex tax, trust and accounting issues. Sources praise the "tenacity and common sense" he brings to challenging disputes.

      Chambers UK

    • "Mark is very experienced, competent, good with clients and takes a sensible approach to cases. He knows exactly what he's doing."

      Chambers & Partners Directory 2020, Mark Freedman

    • "An exceptional outfit. They take on difficult cases, fight hard and win."

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    • "The team frequently deals with cross-border estates for high–net-worth individuals."

      The Legal 500

    • "Mark Freedman is a real heavyweight litigator who has dealt with some very significant cases."

      The Legal 500

    • "Mark Freedman boxes clever, keeps his powder dry and when it comes to the end game he negotiates a really good deal."

      The Legal 500

    • "Mark Freedman has a specific focus on high-net-worth divorces and finance cases where there are overseas assets and trusts."

      The Legal 500

    • "The very personable and client-focused Lisa Pepper."

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    • "Joanne Wescott is a very approachable and sensible opponent."

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    • "Lisa Pepper somehow manages to get parties to settle on matters where there isn’t much hope to start out with."

      The Legal 500

    • "Lisa can handle the large and complicated cases but takes equal care with the smaller cases. She is a highly skilled mediator who is a consummate professional."

      The Legal 500

    • "Well-regarded family practice assisting clients with substantial matrimonial disputes and sensitive children proceedings."

      Chambers UK

    • "Mark Freedman draws acclaim for his work in high net worth divorce cases, including those involving company structures, family trusts and overseas assets."

      Chambers UK 2019

    • "He never gives up. He fights for you to the end and has boundless energy."

      Chambers UK

    • Mark Freedman advises high-net-worth clients and knows his stuff.

      Legal 500

    • Highly regarded for his experience as a litigation and mediation expertise, Mark Freedman is tenacious and determined. Clients really feel that he is fighting their corner.

      Chambers UK

    • Andrew handled a very complex, 3 year legal battle for me, with a tremendous amount of patience and professionalism. He is very approachable, always kept me up to date, by phone and e-mail, and responded very quickly to my queries with excellent advice, sound strategic thinking and strong letters to put the other side under pressure. With top contacts for barristers, joint experts and mediation.

      Family Department Client

    • [The Family Law department] handles significant matrimonial finance cases and complex nuptial agreements. Respected for its expertise in cross-border children law matters.

      Chambers UK

    • Mark Freedman represents high net worth clients in complex financial disputes. Sources say that "he's a determined negotiator who'll always do the very best for his clients.

      Chambers UK

    • "Mark Freedman receives a lot of instructions from clients based abroad, often relating to complex divorce proceedings. Sources say: “His main strengths are his enthusiastic passion for the job in hand and his total dedication to his clients.”

      Chambers UK