Home    Contact us    Site map

Separation and divorce:
The family home

The most significant asset in a divorce is often the family home.

In respect of the family home a court can:


Jargon buster: Equitable interest


If the property is in the sole name of one spouse the court can recognise that the other spouse is entitled to a share in the property if they have contributed to it, for example by bringing up the children. This can apply even if he or she has not directly paid the mortgage or household bills.


A capital gains tax charge can result if care is not taken over the timing of any transfer or sale. A transfer may not qualify as a no gain/no loss transfer, or a sale may not qualify fully for the principal private residence (PPR) exemption (see Jargon buster).

The recognition of an equitable interest is not a disposal for capital gains tax purposes, as the actual ownership of the property does not change.

If the court orders the payment of a capital sum out of the sale proceeds of the house the ownership is not altered and the capital gain on the sale of the house is calculated by reference to the actual spouse owning it. If the couple are living in the property, or the sale is within the last 3 years of ownership, any gain may qualify for the PPR exemption and no tax should be due. If there is more than one property, the position will be complicated by which is the only or main residence.

Jargon buster: Principal private residence (PPR) exemption


The home you live in will generally be exempt from capital gains tax when you sell (or transfer it) provided you have lived there throughout your ownership and it is your only or main residence.

You can only have one home as your only or main residence at any given time. If there are two properties which could be regarded as such you can elect which it is to be within 2 years of the acquisition of the second property. If you do not make an election, which property is your main residence will be a question of fact.

The last 3 years of ownership of a property is always treated as being your only or main residence even if you do not live there provided it has been your main residence at some time.

The detailed rules are complex and a large capital gain can result if a property fails to qualify for the exemption.


If the PPR exemption is not fully available, an HM Revenue & Customs Extra Statutory Concession may apply. Where as part of a divorce settlement, the spouse who has ceased to occupy the family home transfers an interest in it to the other spouse. It can be treated as his or her only or main residence until the earlier of:

Before taking advantage of this concession you should consider all the facts. If you have acquired another property you may prejudice the CGT exemption of your new home as you can only have one main residence for tax purposes. You should take advice on your circumstances.

The court could order that the spouse holding an interest in the matrimonial home should hold it on trust for a specified period, entitling the other spouse to occupy the home for that period, for example until:

At the end of the trust period the interest may revert back to the spouse with the original interest and the property is then usually sold and the proceeds divided appropriately.

There is a disposal for capital gains tax purposes on the court order and when the trust comes to an end. In both cases the gain will usually be covered by the PPR exemption. However, any gain arising in the period between the trust ending and the property being sold will not usually be covered by PPR although it is likely to be minimal in most cases if the sale occurs quickly.

If one spouse sells his or her share in the family home to the other spouse, the acquiring spouse may have to pay stamp duty land tax (see Jargon buster).


Jargon buster: Stamp duty land tax


Stamp duty land tax was introduced in the Finance Act 2003 to replace stamp duty on land and buildings. It came into effect on 1 December 2003 and is a tax on land transactions in the UK. It is generally paid by the person purchasing or acquiring the land.


Certain transactions made in connection with the ending of a marriage are exempt from stamp duty land tax, depending on the type of agreement or court order under which the transactions arise. There is no exemption if the transaction involves a third party as well as the spouses.



Where next?

Within Separation and divorce…

General…