Selling Your House During a Divorce

Divorce is one of the most common reasons people sell their home. According to the Office for National Statistics, there were approximately 80,000 divorces granted in England and Wales in 2022, and the family home is typically the most valuable asset to be divided. Whether you sell, transfer ownership, or defer the sale depends on your financial circumstances, whether you have children, and whether you and your spouse can reach an agreement.

This guide covers the legal framework for dealing with jointly owned property during a divorce, the different settlement options available, and practical advice for managing the sale process cooperatively. It applies to married couples and civil partners in England and Wales — the rules in Scotland and Northern Ireland differ.

Joint tenants vs tenants in common

Before you can decide what to do with the property, you need to understand how you and your spouse own it. There are two forms of co-ownership in England and Wales, and the distinction matters during a divorce:

Most married couples who buy a home together do so as joint tenants. When a divorce begins, it is common for one or both parties to sever the joint tenancy by serving a written notice of severance. This converts the ownership to a tenancy in common with equal shares (unless a court order or agreement specifies otherwise). Severing is important because it removes the right of survivorship, meaning that if one party dies during the divorce process, their share of the property does not automatically pass to the other.

Your solicitor can check the title register at HM Land Registry to confirm how the property is currently held and advise whether severance is appropriate. For more on the documents involved in a property sale, see our guide on the documents needed to sell a house.

Your options for the family home

Selling on the open market is the most common outcome, but it is not the only one. The main options are:

1. Sell the property and divide the proceeds

This is the cleanest option and provides a clean break — both parties walk away with their share of the equity and have no further financial ties to the property. It is the preferred approach where both parties need capital to rehouse themselves. The split does not have to be 50/50; it depends on the overall financial settlement.

2. One spouse buys out the other

If one spouse wants to stay in the property, they can buy out the other's share. This usually involves remortgaging in their sole name and paying the departing spouse their agreed share of the equity. The departing spouse's name is removed from the title by way of a transfer deed. This only works if the remaining spouse can afford the mortgage on a single income.

3. Transfer of property (offsetting)

The property can be transferred to one spouse in exchange for other assets — for example, one party keeps the house while the other keeps a pension of equivalent value. This is called offsetting and is commonly used where the asset pool is large enough to allow a fair division without selling everything.

4. Mesher order (deferred sale)

A Mesher order allows one spouse (usually the parent with primary care of the children) to remain in the home until a specified event triggers the sale. Common triggers include the youngest child reaching 18 or finishing full-time education, the occupying spouse remarrying or cohabiting with a new partner, or the occupying spouse choosing to sell. The order specifies how the proceeds will be divided when the sale eventually happens.

5. Martin order

A Martin order is similar to a Mesher order but is used where there are no dependent children. It allows one spouse to remain in the property until they die, remarry, or voluntarily leave. Martin orders are less common and are typically used where the occupying spouse has no realistic prospect of rehousing themselves and the other spouse does not need the capital immediately.

Financial settlement options at a glance

The following table summarises the main ways a family home can be dealt with during a divorce, along with the key advantages and disadvantages of each:

Can one spouse force a sale?

If you co-own a property and cannot agree on whether to sell, either party can apply to the court for an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Under Section 14 of the Act, any person with an interest in the property can ask the court to intervene.

When deciding whether to order a sale, the court must consider the factors set out in Section 15 of TOLATA:

• The intentions of the person or persons who created the trust (i.e. why you bought the property)
• The purposes for which the property is held (e.g. as a family home)
• The welfare of any minor who occupies or might reasonably be expected to occupy the property as their home
• The interests of any secured creditor (such as a mortgage lender)

In practice, the court is reluctant to force a sale where dependent children are living in the property, particularly if the other parent has the means to rehouse themselves. However, where there are no children or the children are adults, the court is more likely to order a sale. A TOLATA application can be expensive (solicitor costs of £5,000 to £15,000 or more) and time-consuming, so reaching a negotiated agreement is almost always preferable.

Consent orders and the legal process

A consent order is a formal, legally binding court order that records the financial settlement agreed between divorcing spouses. It covers the division of all assets, including property, pensions, savings, and debts. Even where both parties agree on everything, a consent order is essential because:

• Without one, either party can make a financial claim against the other at any point in the future — even years after the divorce is finalised
• It is enforceable by the court, meaning that if one party fails to comply (for example, by refusing to sign the transfer deed), the other can ask the court to enforce the order
• Mortgage lenders and conveyancers involved in the property sale may require sight of the consent order before proceeding

The process for obtaining a consent order involves drafting the agreement (usually by your family solicitor), both parties signing it, and submitting it to the court for approval by a judge. The court fee is currently £53 (as of 2026). The judge will check that the agreement is fair to both parties and, if satisfied, will seal the order. This typically takes four to six weeks from submission.

Selling by agreement vs court-ordered sale

The vast majority of property sales during divorce happen by agreement. Even where the divorce is acrimonious, solicitors and mediators can usually negotiate a settlement that both parties accept. Selling by agreement is faster, cheaper, and gives both parties more control over the outcome.

A court-ordered sale is a last resort. It happens when one spouse applies to the court under TOLATA 1996 or as part of the financial remedy proceedings in the divorce itself (under the Matrimonial Causes Act 1973). The court may order:

• That the property be sold and the proceeds divided in specified shares
• That the property be transferred to one spouse (with or without compensation to the other)
• That the sale be deferred (a Mesher or Martin order)

If you are struggling to reach an agreement, consider mediation before resorting to court proceedings. The Family Mediation Council reports that mediation resolves disputes in around 70% of cases and is significantly cheaper and faster than litigation. You can find a mediator through the Family Mediation Council or your solicitor.

Capital Gains Tax during divorce

Understanding the Capital Gains Tax (CGT) position is important when deciding what to do with the family home. The key rules are:

Transfers between spouses

Transfers of assets between spouses or civil partners are treated as taking place at no gain, no loss for CGT purposes. Following changes introduced by the Finance Act 2023, this treatment applies:

• At any time while the couple are living together
• Within three years of the date of permanent separation
• At any time if the transfer is made as part of a formal divorce settlement (consent order or court order), with no time limit

This is a significant improvement on the previous rules, which only allowed tax-free transfers in the tax year of separation. The receiving spouse takes on the original acquisition cost (the base cost), so CGT may be payable when they eventually sell the property to a third party.

Private Residence Relief

If the property has been your only or main home throughout ownership, you may qualify for Private Residence Relief (PRR), which can eliminate CGT entirely. If one spouse moves out before the sale, PRR still covers the period of occupation plus the final nine months of ownership (regardless of whether you live there during that period). This nine-month window gives departing spouses time to sell without losing the relief, but it is important to act within the deadline.

Stamp duty considerations when buying after divorce

If you are purchasing a new property after your divorce, you need to be aware of the higher rates of stamp duty (the 5% surcharge that applies to additional residential properties). HMRC provides specific relief for people who are purchasing a new main residence following a divorce or dissolution of a civil partnership.

In general, you will not pay the higher rate if:

• You are buying a new property to be your only or main residence
• You have disposed of your interest in the former marital home (by sale or transfer to your ex-spouse)
• Your former home was your only or main residence during the marriage

If you still hold an interest in the former marital home at the point of purchase (for example, under a Mesher order), the position is more complex and you should take advice from your solicitor or a tax adviser. HMRC's guidance on the higher rates (found in their Stamp Duty Land Tax manual) covers divorce situations in detail.

Practical tips for selling cooperatively

Selling a jointly owned home during a divorce requires both parties to cooperate on decisions that would normally be straightforward. Here are some practical ways to keep the process moving:

1. Agree on an estate agent together. If you cannot agree, each propose an agent and let a third party (your mediator or solicitor) decide. Alternatively, obtain three valuations and use the average.
2. Set a realistic asking price. Use independent valuations rather than what either party hopes to achieve. An RICS (Royal Institution of Chartered Surveyors) valuation provides an objective market value and carries weight if there is a dispute.
3. Agree on a minimum acceptable price in advance. This avoids disagreements when offers come in. Record this in writing through your solicitors.
4. Decide who stays in the property during the sale. The property generally shows better if one person lives there and keeps it maintained. Agree who will handle viewings and keep the property presentable.
5. Instruct your conveyancer early. As with any sale, preparing your legal documents upfront avoids delays once an offer is accepted. For a detailed breakdown of what this costs, see our guide on conveyancing costs.
6. Communicate through solicitors if direct communication is difficult. This adds cost but can prevent disagreements from escalating and derailing the sale.
7. Be responsive. Delays in signing documents, responding to enquiries, or agreeing on repairs can cause buyers to lose patience. If you need to sell quickly, see our guide on how to sell your house fast.

Choosing solicitors: joint conveyancer vs separate family solicitors

This is an area where many divorcing couples get confused. The key distinction is between your family solicitor (who handles the divorce and financial settlement) and your conveyancing solicitor (who handles the property sale transaction).

• Family solicitors: Each spouse must have their own. A single solicitor cannot advise both parties on the financial settlement because of the inherent conflict of interest. The Solicitors Regulation Authority (SRA) Code of Conduct prohibits acting where there is a conflict.
• Conveyancing solicitor: Both parties can instruct the same conveyancer for the property sale itself, because at that point both sellers share the common objective of completing the transaction. This can save money and simplify the process.

In practice, many couples use their respective family solicitors to negotiate and finalise the consent order, then instruct a single conveyancing firm to handle the sale. If there is any dispute about the terms of the sale (such as who pays for repairs, how the proceeds are split, or what happens if the sale falls through), the family solicitors should resolve these issues before the conveyancer is instructed. For more on the conveyancing timeline, see our guide on how long conveyancing takes.

If you are also buying: managing a linked transaction

Many people going through a divorce need to sell the family home and buy a new property at the same time. This creates a chain, which adds complexity to the timeline. If both spouses are buying new homes, the chain can become even longer and more fragile.

The most common approach is to sell the family home first, move into rented accommodation, and then buy. This breaks the chain and makes you a more attractive buyer (as a chain-free purchaser). However, this is not always practical, particularly where children need to remain near their school. For advice on managing a linked sale and purchase, see our guide on selling and buying at the same time.

Summary: steps for selling during a divorce

1. Take legal advice early — instruct a family solicitor as soon as divorce is being considered
2. Check the title to confirm how the property is held (joint tenants or tenants in common) and consider severing the joint tenancy
3. Explore all options for the property — selling may not be the best outcome for your circumstances
4. If you agree to sell, record the terms in a consent order through your family solicitors
5. Agree on an estate agent and asking price jointly, using independent valuations if necessary
6. Instruct a conveyancer and prepare your legal documents before listing
7. Cooperate on viewings, offers, and the conveyancing process — delays benefit neither party
8. On completion, the solicitor distributes the proceeds according to the consent order

More life situation guides

• Selling a House Held in Trust
• Selling a Second Home in the UK
• Selling Your House After Redundancy
• Selling a Property as a Company
• Selling Your House for Health Reasons
• Selling a House After Bankruptcy
• Selling a House After the Death of a Spouse
• Selling a House After Your Spouse Moves Out
• Selling a Property in a Retirement Village
• Selling Your House to the Council
• Selling a House with Equity Release
• Selling an Inherited House with Siblings
• Selling Property as a Trustee
• Selling When You Have Shared Ownership
• Selling a House to a Family Member
• Selling a UK Property While Living Abroad

Sources

• Matrimonial Causes Act 1973, Section 25 — legislation.gov.uk
• Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), Sections 14 and 15 — legislation.gov.uk
• Finance Act 2023 — legislation.gov.uk (CGT changes for separating couples)
• HMRC — Capital Gains Tax: separation and divorce (GOV.UK)
• HMRC — Stamp Duty Land Tax: higher rates for additional properties (GOV.UK)
• The Law Society — Divorce and separation: dealing with the family home (lawsociety.org.uk)
• Family Mediation Council — familymediationcouncil.org.uk
• Office for National Statistics — Divorces in England and Wales (ons.gov.uk)
• Solicitors Regulation Authority — Code of Conduct (sra.org.uk)
• HM Land Registry — Practice Guide 24: Private trusts of land (GOV.UK)

Related guides

• Selling a House After Separation When You Have Children

Frequently asked questions