Divorce, separation and the family home: who keeps it, and the tax (UK)

The three ways the home is decided (England and Wales)

GOV.UK says the court can approve a consent order only after the conditional order (decree nisi), and it is usually simpler to do so before the final order (decree absolute). The order takes effect only once the final order is made. GOV.UK says you need a consent order to make an agreement legally binding; an agreement reached in mediation is not legally binding on its own.

How a judge decides who keeps the home

GOV.UK lists what the judge looks at: the length of the marriage or civil partnership, each person’s age, ability to earn, property and money, living expenses, standard of living, financial needs and responsibilities, role in looking after the family, and any disability or health condition. The judge makes arrangements for any children first, “especially their housing arrangements”, and usually aims for a clean break. The reason for the divorce is not taken into account.

In practice the outcome is one of: the home is sold and the proceeds split; one person buys out the other and takes over the mortgage; or one person keeps living there for a period and the home is sold later. HMRC’s helpsheet HS281 gives an example of the last case, where one partner stays until the youngest child turns 18.

Protecting your right to stay

• Home rights. If the home is in your spouse’s or civil partner’s sole name, you can register a notice of home rights with HM Land Registry (form HR1, no fee for a registered property; form K2, a Class F land charge with a £1 fee, for an unregistered one). GOV.UK says this “can help stop your partner from selling your home”. It usually lasts until the divorce or dissolution is finalised, unless a court makes a continuation order. You cannot apply if your spouse owns the home with someone else, unless they are the sole beneficial owner.
• Severing a joint tenancy. If you own the home jointly as joint tenants, your share passes automatically to your ex-partner if you die. You can change to tenants in common without their agreement by serving a notice of severance and applying for a Form A restriction (form SEV), with no fee. See joint tenants or tenants in common.

Taking the other person off the title

Removing an owner is a transfer of equity: a transfer deed registered at HM Land Registry, with the lender’s agreement if there is a mortgage. When it gives effect to a court order under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004, HM Land Registry charges the Scale 2 fee on the value of the property less any continuing mortgage, even if one party is ordered to pay the other.

Stamp Duty and its Welsh and Scottish equivalents

HMRC’s worked example for unmarried joint owners: one takes over a £550,000 home, paying £175,000 for half the equity and taking on £100,000 of mortgage, so tax is charged on £275,000. See transfer of equity for the calculation at current rates.

Capital Gains Tax when you separate

HMRC’s helpsheet HS281 (2026 edition, for transfers on or after 6 April 2025):

• While you live together, transfers between spouses or civil partners are at no gain or loss.
• After you separate, the same treatment continues up to the earlier of the end of the third tax year after the year you stopped living together, or the date the court grants the divorce, dissolution or annulment.
• Transfers made under a formal divorce or separation agreement or court order are at no gain or loss with no time limit.
• Private Residence Relief: if you move out, you keep relief for the time the home was your main residence plus the final 9 months. If the home is sold under a formal agreement or court order and your ex-partner lived there throughout, you can choose to treat the period after you left as your main residence, but you then lose relief on any other home for that period.
• If you transfer your share but keep a right to part of the sale proceeds later, relief on that later sale follows the same proportion as on the original transfer.

“Living together” has a specific meaning: you are treated as living together unless separated under a court order, by a formal deed of separation, or in circumstances likely to be permanent. See Capital Gains Tax on a home.

Scotland and Northern Ireland

Family law differs. GOV.UK’s guide on money and property points to separate options in Scotland and Northern Ireland, and the SDLT, LTT and LBTT exemptions also cover incidental orders made under section 8(2) of the Family Law (Scotland) Act 1985. The court steps and fees above are for England and Wales only; the tax rules on SDLT (England and Northern Ireland) and Capital Gains Tax (whole of the UK) apply as described.

Which professional to consult

A family solicitor drafts the consent order. A conveyancer transfers the title and deals with the lender, a mortgage adviser checks whether the person keeping the home can borrow alone, and a valuer gives the market value used to split the equity and for tax. If the home is sold, an estate agent handles the sale.