Separating: what happens to the house

What are the options for the family home on separation?

There are broadly three. The first is to sell and divide the net proceeds in whatever shares are agreed or ordered. It is the cleanest outcome and the one the court falls back on where neither party can afford to keep the house. The second is a transfer into one name: one party keeps the home and the other is released from the title and, usually, the mortgage, in return for a lump sum, a larger share of other assets, or nothing, depending on the overall settlement. The third is a deferred sale, where the property stays in joint names or is held on trust until a defined event, after which it is sold and the proceeds split in fixed shares. A deferred sale order tied to children is often called a Mesher order; one tied to an event in the occupying spouse's own life, typically remarriage or cohabitation, and sometimes death or a right to remain for life, a Martin order. Both names come from cases decided in the 1970s and both are still used by practitioners, though the courts use Mesher far more often than Martin in reported judgments.

Married couples and civil partners can ask the family court for a financial remedy order under the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004, under section 24 of the 1973 Act or paragraph 7 of Schedule 5 to the 2004 Act, and most settle by a consent order. That is not a rubber stamp: section 33A of the 1973 Act lets the court make the order in the agreed terms only if it has no reason to think there are other circumstances it ought to inquire into, and rule 9.26 of the Family Procedure Rules 2010 requires two copies of the draft order, one endorsed with the respondent's agreement, together with a statement of information from each party on form D81. Unmarried couples have no equivalent jurisdiction between themselves; their rights depend on the legal and beneficial ownership of the property, and disputes go to the civil court under section 14 of the Trusts of Land and Appointment of Trustees Act 1996, where the court weighs the intentions behind the trust, the purpose the property is held for, the welfare of any child occupying it and the interests of any secured creditor. Where there are children, Schedule 1 to the Children Act 1989 is a separate route, and it does allow the family court to order a settlement or transfer of property for a child's benefit whether or not the parents were married. That difference matters, because a cohabitant who is not on the title and made no financial contribution may have no claim at all.

Whatever the route, the conveyancing that follows is the same in kind: a transfer of equity where one party takes the property, or a sale where it goes to a third party. The court order or separation agreement says what should happen; the conveyancing makes it happen.

How does a transfer into one name work?

The transfer is made on HM Land Registry form TR1, signed by both parties, transferring the property from the joint names into the sole name of the party keeping it. Where the departing party is paid for their share, the consideration is stated; where the transfer is in accordance with a court order for no payment, that is stated instead. The TR1 is lodged with form AP1, evidence of identity for both parties, and the fee under HM Land Registry's fee order, and the register is updated to show the sole owner.

The mortgage is the obstacle more often than the transfer itself. A joint mortgage is a joint and several liability: each borrower is liable for the whole debt. Signing the TR1 does not change that. The departing party remains liable to the lender until the lender releases them, and the lender will only do so if the remaining party can satisfy its affordability criteria alone, or if a new lender takes over by remortgage. Our transfer of equity to a spouse guide walks through the lender's process.

Where the existing lender agrees, it issues consent to the transfer and a deed of release or a new mortgage deed in the remaining party's sole name, and the transfer and the mortgage documents complete together. Where a new lender is involved, the transaction is a remortgage and a transfer at the same time: the new advance repays the old mortgage, the departing party is released, and the new charge is registered against the sole owner.

If the property is held as joint tenants, the transfer into one name ends the joint tenancy. If a deferred sale is chosen instead and the property stays in joint names, most separating spouses are advised to sever the joint tenancy at once, so that if one dies before the sale their share passes under their will rather than to the ex-partner by survivorship. Our joint tenants or tenants in common guide and severance service cover the notice and form SEV.

What if the house is in my spouse's sole name?

A spouse or civil partner who is not on the title has home rights under the Family Law Act 1996: a right, if already in occupation, not to be evicted or excluded except with the leave of the court, and if not in occupation a right to enter and occupy with the court's leave. That is section 30(2) of the Act, and section 30(7) puts outside it any home that has at no time been, and was at no time intended to be, the couple's home together. Checked 20 September 2026. Those rights can be protected by a notice on the register, applied for on HM Land Registry form HR1. The notice does not create ownership, and it does not stop a sale, but it binds a buyer or lender, which in practice means the property cannot be sold or mortgaged with vacant possession until the notice is cancelled or the occupying spouse agrees.

Home rights end on decree absolute or final order unless the court extends them, so the HR1 should be lodged early, and any settlement should deal with its cancellation. Our form HR1 service prepares and lodges the notice. Unmarried partners have no home rights; a cohabitant who wants to protect a claimed beneficial interest has to apply for a restriction or a unilateral notice on a different footing, which is a matter for advice.

Is there tax to pay when the house is transferred on divorce?

Stamp Duty Land Tax in England, and Land Transaction Tax in Wales collected by the Welsh Revenue Authority, are both generally not chargeable on a transfer between spouses or civil partners made in connection with a divorce, dissolution or judicial separation, whether under a court order or under an agreement made in contemplation of or otherwise in connection with it (Finance Act 2003 Schedule 3 paragraphs 3 and 3A, and Schedule 3 paragraphs 3 and 4 of the Welsh Act of 2017, checked 19 September 2026). No court order need be in view for the agreement route to work. The exemption covers taking over the other party's share of the mortgage, which would otherwise be chargeable consideration. Because this is an exemption rather than a relief, no return is needed where it applies. It reaches only a transfer between the two spouses or civil partners themselves, so if anyone else is joined onto the title, or the transfer is not made under a qualifying order or agreement, a return may be required. Transfers between unmarried partners do not qualify at all.

Capital gains tax is the tax people forget. Transfers between spouses and civil partners are treated as made at no gain and no loss while they live together, and for disposals on or after 6 April 2023 section 58 of the Taxation of Chargeable Gains Act 1992 extends that. Read the extension carefully, because it closes at whichever of two dates comes first: the last day of the third tax year after the tax year in which the couple ceased to live together, or the day the court grants the divorce, dissolution, annulment or separation order. A couple who separate and divorce quickly can therefore lose it well inside three years. There is a second route with no time limit, but it has two conditions and not one: the couple must have ceased, or be in the process of ceasing, to be married or civil partners, and the transfer must be under a qualifying court order or agreement. A formal separation agreement with no divorce under way does not open it. Private residence relief on a later sale is two different provisions and the difference matters. Where the leaver keeps their share and it is later sold to a buyer outside the marriage, section 225B can treat the home as having remained their residence, but only if three conditions are all met: the sale is under a qualifying agreement or order, the home remained the other party's only or main residence throughout, and the leaver has not nominated another property as their main residence for any part of that period. Nominating a new home can destroy it. The relief is not automatic and has to be claimed. Where instead the leaver transfers their share to the other party and keeps a contractual right to a share of the eventual profit, which is the usual shape of a deferred sale order, it is section 225BA that applies, the later receipt is treated as a gain from the original transfer, and relief is fixed at the proportion that applied at that transfer, so the other party's continued occupation does not extend it. The rules are detailed and the timing matters, so the tax should be checked before the settlement is finalised, not after.

How does a court order become a change on the register?

It does not, by itself. A consent order or financial remedy order is directed at the parties: it says that one must transfer the property to the other, or that the property must be sold, by a date. It does not transfer anything. The transfer still has to be made on a TR1 signed by the transferor. If the transferor neglects or refuses to comply, or cannot be found after reasonable inquiry, section 39 of the Senior Courts Act 1981 lets the court order that the transfer be executed by a person it nominates, usually a judge or an officer of the court. Since 22 April 2014 that section names the family court as well as the High Court, so there is no separate route to find, although the section heading was never updated and still refers only to the High Court. Section 39(2) then makes the deed operate as if the owner had signed it. HM Land Registry will register a transfer signed that way: its practice guide on the execution of deeds asks for a copy of the court order to go in with the application, and for the execution clause to name the court, the case number and the date of the order. A judge's signature is not expected to be witnessed, but an officer of the court's must be (checked 20 September 2026). Because that power depends on showing a failure to comply, the order itself should state the date by which the transfer is to be signed.

HM Land Registry will register the transfer on the TR1 and the AP1, with identity evidence for both parties. Where a party is unrepresented, that means a form ID1 for an individual, verified by a conveyancer completing section B. Verification at an HM Land Registry office is no longer available. It does not have to be a conveyancer acting for anyone in the transaction, so an unrepresented party can go to any convenient conveyancer, and Practice Guide 67 also allows any Chartered Legal Executive or a licensed probate practitioner regulated by the Council for Licensed Conveyancers. Where the conveyancer verifies identity digitally to HM Land Registry's digital identity standard, section C is completed instead; where they verify by video call they complete form ID5 in place of section B or C and lodge it with the ID1, together with a printed colour copy of a screenshot from the call. Form ID5 is not an alternative to form ID1. Download the form fresh on the day, because HM Land Registry accepts only the latest version and says an old one may draw a requisition, and it must be signed no more than three months before it is lodged. If the order provides for a deferred sale or a charge back to the departing party, a restriction or a charge is registered to protect it, and the wording should track the order.

The step people forget is the one that matters at the next sale. A house transferred by court order in 2015 but never registered is still in joint names in 2026, and the ex-partner's signature is needed to sell it. Finding them, and persuading them to sign, is the delay nobody budgeted for. Our removing a name from the deeds after divorce page deals with that situation.

What should I do first?

Find out how the property is owned: whose names are on the register, whether there is a Form A restriction indicating tenants in common, and what the mortgage balance is. If you are not on the title and you are married or in a civil partnership, lodge an HR1. If you are a joint tenant and there is any chance the property will stay in joint names for a while, take advice on severing. Then take advice on the settlement itself, which is family law, not conveyancing, and comes before any transfer.

Once the settlement is agreed or ordered, the conveyancing follows: the lender's consent, the TR1, the tax forms and the registration. On a fixed fee agreed in writing before work starts, our transfer of equity service handles that end of it, and works alongside whoever advised you on the settlement.