Law Articles

The family home in divorce/dissolution 17/04/2025

Divorce and dissolution can be a difficult and emotional process, and one of the most significant issues to address is the fate of the family home. For many people, the family home represents not only a financial asset but also a place full of memories and stability, especially if there are children involved. So, when a marriage or partnership ends, what happens to the home? Whether or not the home needs to be sold depends on several factors, including the financial circumstances of both parties, the needs of any children, and specific details about the divorce itself.

In England and Wales the law provides the courts with broad powers to deal with the distribution of assets during divorce and dissolution proceedings. The aim is to ensure fairness while considering the welfare of the children. If a couple owns a home together, the court will usually decide how the property should be dealt with based on several key principles.

Matrimonial Causes Act 1973 and Civil Partnership Act 2004

The primary piece of legislation governing divorce and financial matters in England and Wales is the Matrimonial Causes Act 1973 (MCA 1973). The equivalent legislation for the dissolution of civil partnerships is the Civil Partnership Act 2004 (CPA 2004) as amended by the DDSA 2020.

These Acts provides the court with the authority to make various orders regarding the distribution of assets, including the family home, such as: 

1. Order the sale of the family home
2. Transfer ownership of the property to one party
3. Postpone the sale of the property until a specified event occurs

These options allow the court to tailor its decision to the unique circumstances of the divorce and the needs of both parties.

Will the family home be sold?

In many divorces and dissolutions, the question of whether the family home will be sold is one of the most pressing concerns. However, the answer is not always straightforward. The decision depends on various factors, such as the financial situation of both parties and any children they may have.

If one party can afford to buy out the other's share of the home, this may be the preferred solution. For example, if one party wants to remain in the family home, and the other agrees to sell their interest in the property, the court may allow this to happen. This option is generally favoured, particularly if the party remaining in the home has primary care of the children. The court often seeks to provide stability and continuity for the children, so keeping the family home can help achieve that goal.

However, if neither party can afford to buy out the other's interest, selling the property may be the only feasible option. In such cases, the proceeds from the sale would be divided between the parties to achieve a fair distribution, which does not always mean the proceeds are divided equally.

In some cases, the court may opt for a solution that allows the primary caregiver, often the parent with responsibility for the children, to stay in the family home for a period. This is done through a Mesher Order, which postpones the sale of the home until a certain event occurs. For example, the sale might be postponed until the youngest child reaches a particular age or finishes their education.

This option provides the parent and children with the stability of remaining in the family home during what can be a turbulent period. The court’s aim is to avoid unnecessary disruption in the lives of children, and the Mesher Order can be a useful tool in achieving this.

What happens if there are children involved?

The needs of children are always a priority when the court makes decisions about the family home. If children are involved, the court generally prefers solutions that provide stability and continuity. The court may be more inclined to allow the parent with primary responsibility for the children to remain in the home, particularly if selling the property would cause significant disruption to their lives.

However, this does not mean that children’s needs automatically result in the family home being kept. If the financial situation of both parties is dire, the court may order the sale of the home and the division of the proceeds. Ultimately, the court’s goal is to achieve fairness, considering the financial position of both parties and the best interests of the children.

Conclusion

In a divorce and dissolution proceedings, the question of what happens to the family home can be complex. Whether or not the property is sold depends on factors like the financial situation of both parties, the needs of any children, and the specific circumstances of the case. The court has a range of options at its disposal, from ordering the sale of the home to transferring ownership to one party or postponing the sale through a Mesher Order. Ultimately, the court aims to achieve a fair division of assets while prioritising the welfare of the children. The final decision will vary depending on the unique details of each case.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation.