Do I Have to Sell My House When Getting Divorced?

When you are separating and looking to get divorced, it’s likely one of your biggest questions will be “do I have to sell my house when getting divorced?” It will obviously be a worry as the family home is both a major financial asset and often a place filled with memories, especially where children are involved.

Selling the house is not always the only option in a divorce. Whether or not you have to sell your home when getting divorced will depend on things such as your financial situation, the legal ownership of the house, and arrangements for children if you have them. In this article, we look at property rights in divorce and the options that are available to you.

It could be that are able to remain in your home after divorce, at least temporarily. For example, if your children live in the property the court may give priority to ensuring they have a stable home. It will also often depend on if you or your spouse own the property and your financial circumstances.

Staying in the house does not necessarily mean you will own it in the final divorce settlement but arrangements can be made while the financial aspect of the divorce is sorted out. If the house is in your spouse’s name and you are concerned about being forced to leave, there are legal protections available (discussed further below).

There is not an automatic “50/50” rule regarding the division of property in a divorce settlement. Although the courts aim for fairness, which does often result in an equal split, the decision is based on many factors, including the length of the marriage, contributions (financial and non-financial), yours and your exes’ future financial needs, and the housing needs of any children.

If you jointly own your home, it is highly likely your spouse will be entitled to a share. If your home was owned by you before you got married or was inherited, it is possible it may be considered a “non-matrimonial asset”, though still subject to division depending on need.

Married people still have legal rights even if they are not named on the title deeds of the house they live in. The Matrimonial Causes Act 1973 gives you a right to occupy the matrimonial home, even if it’s in your spouse’s sole name.

It is important to know that you can protect this right by registering a Matrimonial Home Rights Notice with the Land Registry. By doing so, it prevents the owner from selling, transferring, or mortgaging the property without your agreement.

It is a temporary measure that stays in place until the financial settlement is agreed or ordered by the court. This notice does not give you ownership of the property, but it does give you a right of occupation during the divorce proceedings.

Dividing the house in a divorce depends on both parties’ financial needs. Common outcomes include selling the home and splitting the proceeds, one party buying out the other’s share, transferring the home to one party (with or without a charge-back), or a postponed sale through a Mesher Order. The court’s objective is to reach a fair division, which might mean one party keeps the home while the other receives a greater share of pensions, savings, or other assets.

When children are involved, the court prioritises their housing needs. This can often result in one parent remaining in the home with the children, while the other receives a larger share of other assets. A postponed sale, such as through a Mesher Order, may also be used, allowing the children to stay in the home until they reach a certain age before it is sold and the proceeds divided.

To start with, avoid moving out unless necessary. It is important to seek professional legal advice as early as possible, certain before agreeing to sell or transfer ownership. Depending on your circumstances you may wish to consider a matrimonial home rights notice or a property adjustment order. Your family law solicitor will be able to provide advice tailored to your situation.

It is important to engage in full financial disclosure during divorce proceedings to ensure assets are divided fairly. If you suspect your spouse is trying to hide or dispose of property, your solicitor can apply for a freezing order.

Once a Financial Consent Order or court order is made as part of your divorce, your spouse’s rights to the property will be legally defined and, in many cases, brought to an end. However, if you do not obtain a legally binding financial order, your spouse could still make a claim on the property in the future, even many years after the divorce. This is why finalising your financial settlement is essential, even if you reach an informal agreement between yourselves.

There is no one-size-fits-all answer to who gets the house in a divorce. The outcome depends on ownership, financial needs, and what’s in the best interests of any children involved. There are legal options that could allow you to stay in the home, either permanently or temporarily. Early legal advice is crucial to help you understand your rights, protect your interests, and achieve a fair and secure outcome.

If you are thinking of divorcing and are concerned about the future of your home, our experienced family law solicitors in Milton Keynes can advise and guide you from the moment we start working with you. As well as our head office in Milton Keynes, we also have offices in Bicester, Watford, and London where we can arrange appointments to see you in person. Talk to us in confidence and find out where you stand. Get in touch – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.