When a couple divorce, the family home frequently becomes an asset over which that couple come to loggerheads. The Family Courts in the UK have the powers to give a spouse the right to stay in a home, even if they are not a legal owner of the property. In certain circumstances, orders can be made to exclude a spouse from the home, even when they do own the property in their sole name. The Family Courts can order a jointly owned family home to be transferred to one spouse, or sold, depending on the facts of each case. The Courts will always consider the needs of each party to the marriage and the needs of any children when exercising its wide powers.

Often, if a family home is to be transferred or sold, the parties need to consider how the mortgage repayments are made on an interim or a long term basis. In a recent case of CH v WH [2017], the Husband and Wife each agreed that they each retain one of two jointly owned properties. The properties were mortgaged in both parties' names. The parties each stated that they would make all efforts to remove the other spouse's name from the mortgage as soon as they possibly could, but until that time, they each agreed to be responsible for the repayments under the respective mortgages. This responsibility extended to each party giving the other an indemnity in respect of any payments. Effectively, this meant that for such time as each mortgage remained in joint names, each spouse would bear all responsibility for repayments, arrears and assurances, on behalf of both spouses, as if it were a mortgage in his/her sole name.

The District Judges in Southampton said that despite this agreement between the parties, the Family Courts simply did not have the power to order these indemnities to be given. Mostyn J, a leading Family Judge, has recently reiterated that the Family Court has significant discretion in this area. He stated that the Family Courts have powers akin to the High Court and it is indeed possible for the Family Court to order that payments are made by one spouse on behalf of the other. In his judgment, Mostyn J was critical of the Court's reluctance to approve Mr and Mrs H’s agreement. It is clear that the Family Court's powers should not be seen as limited, but there is a wide discretionary remit within the Family Court.