Divorce and Family Home Disputes

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Lorraine Harvey

Partner, Family Law

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When you get a divorce, the property you lived in together is usually the largest asset that you own. This is known as the former family home. Because it’s usually the largest asset, it can also be the subject of the biggest contention when you separate from your partner.

The first important thing to understand is how you own your property. In England and Wales there are two ways that you can jointly own property. They are Joint Tenants and Tenants in Common: 

Joint Tenants

This means that you both own 50% of the property and that both of your names are on the mortgage and the Title Deeds for your property.

 As Joint Tenants, there is a Right of Survivorship. This means if one of you dies, the other automatically receives their share of the property. This means even if you have made a Will and you want the property to go to someone else, it will not.

Tenants in Common

In this situation, the property is divided between you as a percentage, which can be an equal or unequal shares. There is no Right of Survivorship between Tenants in Common. If one of you dies, that person’s share of the property will be passed on according to their Will if they have one, or according the Rules of Intestacy if they don’t.

Changing the way that you own your property together may be necessary as you go through your divorce so it’s important to understand the differences. Our Divorce Solicitors can advise you on the best options in your circumstances as every divorce is completely unique to the individuals involved. In divorce, there just isn’t a ‘one size fits all’ approach.

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How to Deal With Family Home Disputes

When you get divorced or dissolve your civil partnership, you have several options when you’re looking at how to deal with your family home. These options include:

  • Selling your home
  • Transferring ownership
  • Keeping the home until an event triggers the sale of the home. For example, when your children reach 18 years old.

You may need to get an Order from the Court or have an agreem,ent drawn up to reflect any decisions you and your former partner/spouse make about your former family home.

These are some of those Court Orders which could be options for you. Again, getting legal advice from an experienced Divorce Lawyer will give you the best chance of getting the best outcome for both you and your family.

Property Adjustment Order

Property Adjustment Orders include immediate sale, outright transfer, deferred trust of land or deferred charge. Below, we will outline each one individually to help you understand which one may be best for you and your family.

Immediate Sale

The Court has the power to order the immediate sale of the former matrimonial home and the division of the proceeds. This is appropriate if the Court is looking to achieve a clean break between the couple. The Court will usually allocate a percentage rather than an actual amount and each person can use their share of the equity towards buying separate homes.

However, the Order for Immediate Sale will need to make sure that any liabilities are paid from the proceeds of the sale. This will include the existing mortgage, estate agents fees and Conveyancing Solicitor fees.

If the Court orders the sale of the former matrimonial home, it is possible that one person may receive a greater proportion of the equity. This could happen if they are on a lower income as it will allow them to buy a new home.

Additionally, where there are children who are still minors, the Court must give consideration to the needs of the children when deciding what should happen to the family home. This is because the court will want to ensure that the children have somewhere to live.

Outright Transfer

If you want to achieve a clean break between you, but one of you wants to stay in the family home, you can achieve this by having an outright transfer order made in your favour.

With this option your share of the equity could be transferred to your former partner who wants to stay in the property. This could be done in return for a lump sum payment, which is essentially the same as buying out the equity share. 

The most important consideration in this situation is to make sure that the person who remains in the home can afford to stay and pay all the outgoings. If you are the one staying and having the property transferred, you’ll need to check with the lender to make sure they are happy to facilitate the transfer. If not, you may need to remortgage or explore other financing options.

Deferred Trust of Land

The Court may decide that neither an immediate sale nor an Outright Transfer is appropriate. Instead, the Court could Order that the home is held on trust in joint names and that the sale of the home is postponed until a triggering event occurs.

This is rarely used in practice unless the court makes a Mesher Order or a Martin Orders.

Mesher Order

A Mesher Order creates a trust of land under which you both hold the property as Tenants in Common in defined shares. The sale of the home is postponed until one of the following triggering events occurs. These events are:

  • The death of the person living in the property
  • The remarriage or cohabitation of the person living in the property
  • The sale of the property
  • The youngest child turning 18 or ceasing full time education whichever is the later of these two events
  • Some other specified triggering event.

A Mesher Order is more commonly used when there are young children, the parties do not want to uproot them and the parent with whom the child or children are living cannot afford to buy the other out. The property stays in both names and the Mesher Order, along with the placement of a deferred charge on the title, acts as security over their share.

Martin Order

A Martin Order is similar to a Mesher Orde as it creates a trust of land and you both hold defined shares as Tenants in Common.

However, the person who is living in the property is given the right to occupy the former family home for life or until they remarry. This is usually used when there are no children and the person who is not living at the property does not need the capital for re-housing and the other person cannot afford to purchase their interest in the property.

Deferred Charge

This is another option to retain the former marital home. It works by transferring the property into the sole name of the person living there and placing a charge over the property in favour of the non-occupying person so they can retain their interest in the property.  The charge cannot be enforced until one of the following triggering events occurs:

  • The person living there dies
  • The person living there cohabits or remarries
  • The property is sold
  • The youngest child turns 18 or ceases full time education whichever is the later of these two events
  • Some other specified triggering event.


The Court can transfer a range of tenancies between spouses following receipt of the Decree Nisi, Conditional Order. This is in accordance with the Family Law Act 1996. The tenancies that can be transferred include:

  • Protected tenancies
  • Secure tenancies
  • Assured tenancies
  • Statutory tenancies

The Court will need to consider all circumstances, including the conduct each of the parties and their suitability as tenants.

Matrimonial Home Rights

If you have lived in the property but you are not on the legal title to the property, you are entitled to register home rights as a charge against the property.

However, if there are multiple properties, you can only register home rights against the one that you have lived in or are living in as a family home. This cannot be used where the property is held in joint names, both legally and beneficially by spouses.

It is important to note that Matrimonial Home Rights only give you the right to occupy and not be evicted or excluded from the home. They do not give you the right of ownership.

The home rights only apply until the Decree Absolute/Final Order has been made.

Unless the Court Orders that the home rights should continue, they will come to an end:

  • When the spouse who has the legal title dies
  • On termination of the marriage
  • By an Order of the Court
  • By the spouse agreeing to release the rights in writing.

This is a complicated and important area of your divorce so it’s important that you’re able to get this right and get the correct legal advice tailored to your own individual circumstances. . Get expert help from our specialist Divorce Solicitors who can help you to get the best possible outcome.

We offer a variety of options for appointments including telephone and video calls - whatever suits you best. We are here to support you and make the process as easy as possible for you. You will be fully supported throughout the divorce process, and we will deal with your former partner or their solicitor and the court. This takes the pressure off you, so that you can take care of yourself and your family.

To contact one of our expert divorce solicitors, please call our friendly and helpful team today on 0808 239 3465 who will be more than happy to help. Alternatively, you can request a call back.


UK Government. (1996). Family Law Act 1996. [Online] Available at: https://www.legislation.gov.uk/ukpga/1996/27/contents (Accessed: 20/12/2023).

LexisNexis. (n.d.). Property Adjustment Order. [Online] Available at: https://www.lexisnexis.co.uk/legal/glossary/property-adjustment-order (Accessed: 20/12/2023).

UK Government. (n.d.). Inheritance Tax: How to Inherit if Someone Dies Without a Will. [Online] Available at: https://www.gov.uk/inherits-someone-dies-without-will (Accessed: 20/12/2023).

UK Government. (n.d.). Joint Property Ownership. [Online] Available at: https://www.gov.uk/joint-property-ownership (Accessed: 20/12/2023).

Simpson Millar LLP. (05/06/2019). What's the Difference Between a Decree Nisi and a Decree Absolute? [Online] Available at: https://www.simpsonmillar.co.uk/family-law-solicitors/divorce/whats-the-difference-between-a-decree-nisi-and-a-decree-absolute/ (Accessed: 20/12/2023).

Simpson Millar LLP. (06/11/2019). Divorce and Family Home Disputes. [Online] Available at: https://www.simpsonmillar.co.uk/family-law-solicitors/divorce/divorce-and-family-home-disputes/ (Accessed: 20/12/2023).

Simpson Millar LLP. (n.d.). Finances in Divorce. [Online] Available at: https://www.simpsonmillar.co.uk/family-law-solicitors/finances-in-divorce/ (Accessed: 20/12/2023).

Lorraine Harvey

Partner, Family Law

Areas of Expertise:
Family Law

Lorraine is a Partner at Simpson Millar, specialising in Family Law for over 20 years.

She handles middle to high net value cases, including pension claims and complex trust, and also advises on pre-nuptial and post-nuptial agreements.

Lorraine has unrivalled knowledge of public sector pensions, in particular police pensions, having advised police officers on pension claims for two decades.

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