- Though there are circumstances in which you may be forced to sell the house in a divorce, it can often be avoided.
- If you want to sell your family house due to divorce and your partner doesn’t, or the other way around, one partner can apply for a court order for an Action of Division and Sale.
- If one partner or the other wants to force the sale of a home when divorced, they have to obtain an Order for Sale from the court.
- Having a joint mortgage is common and fortunately there are several ways this can be dealt with in a split or divorce.
In This Article
- Do You Have To Sell Your House When Divorced?
- Can You Be Forced To Sell Your House In A Divorce?
- Can You Sell A House If One Partner Refuses?
- Who Can Sell Your House When Divorced?
- Who Gets The House When Children Are Involved?
- How Is a House Sale Divided In a Divorce?
- What If You Have A Joint Mortgage?
- What If You Want To Sell Your House Quickly During A Divorce?
Selling your house is complicated enough at the best of times, but how do you deal with the question of selling when your relationship has ended and you face separation or divorce?
Divorce or separation often create a number of financial issues which normally have to be solved through legal processes. Dealing with the marital property in a split is one of the main problems. Usually, the family home is the most valuable asset involved in marital property, and it’s often complicated deciding how to deal with it. If you are selling a house due to a divorce, it’s important for both members of a couple to know your legal rights, so your first step should be to consult a lawyer.
Do You Have To Sell Your House When Divorced?
The first question is whether you have to sell the house in a divorce. If the house is subject to a mortgage, you need to contact your mortgage provider immediately to inform them of the split.
Whether you are paying the mortgage on the marital property, or your ex- is contributing to payments, the payments must still be made until the mortgage is paid off or you remove your name from it.
If your name isn’t on the deeds of the marital property, to protect your rights you should register your interest with a lawyer using a Matrimonial Home Rights Notice1.
Can You Be Forced To Sell Your House In A Divorce?
Though there are circumstances in which you may be forced to sell the house in a divorce, there may be ways to avoid this depending on your situation.
- If there’s a requirement to get cash quickly, perhaps as part of a settlement agreement, it is possible that the house will have to be sold immediately
- Alternatives include one party (the ‘in-spouse’) buying out the other’s interest in the property (the ‘out-spouse’), allowing them to retain the property. This is often desirable to maintain continuity of residence when children are involved.
- In many cases neither party can afford to buy out the other, or they cannot agree on the value of the house. If this is the case one party can re-mortgage the property and use the funds to buy out the other partner.
- If that’s not possible, the only way to resolve the issue is to sell the house for whatever it will reach on the open market. The net equity realised from the sale can then be divided.
If both parties are agreeable, it’s also possible for them both to retain ownership rights of the property until market conditions are ideal, or perhaps when the children are grown.
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Can You Sell A House If One Partner Refuses?
If you want to sell your family house due to divorce and your partner doesn’t, or the other way around, one partner can apply for a court order for an Action of Division and Sale under the Trusts of Land and Appointment of Trustees Act 19962 (laws differ in Scotland and Northern Ireland).
Bear in mind though that the other half of the couple has rights to apply for a court order for a division of the proceeds, or to buy the house at a fair market price, or for a price dictated by the court.
If one person is owner of the property and the other withholds permission to sell, the court can allow the sale only under particular circumstances, such as if one or other partner cannot sign an agreement for medical reasons, cannot be located, or if the court believes permission is being withheld unreasonably.
Who Can Sell Your House When Divorced?
If one partner or the other wants to force the sale of a home when divorced, they have to obtain an Order for Sale3 from the court. This requires the other partner to provide a good reason for being unwilling to sell. If none is provided the court will decide the value of the shares in the house for each partner.
Aspects to be taken into consideration will include:
- Whether the mortgage has been paid off, or
- Whether the property is in negative equity
- Whether there are children involved, and
- Whether both parties can afford to buy new homes.
It’s important to remember that even after a split, both partners may retain rights during the divorce proceedings. Any violation of these rights may result in a Court Order for Occupation4 being taken out, so you may have to leave the home even if you are the owner.
A lawyer’s advice would be that it is never a good idea to force a sale as there may be serious legal and financial consequences.
Who Gets The House In A Divorce When Children Are Involved?
There’s no hard and fast rule as to who gets the house in a divorce when children are involved. As in most divorces the family home is the most substantial asset, both parents can have a claim, and any emotional attachment to the property is not as important as the question of how their housing needs and those of the children can be met in the future.
Normally, negotiations regarding family property have to take into account other factors such as:
- Income of both parties
- Earning capacity of both parties
- Maintenance of standard of living of both parties
- Pension provision
- Duration of the marriage
- Age of each party
- Marital conduct of each party
- The main consideration, welfare of the children (if they have not reached the age of 18).
The court will always try to achieve a stable home life for the children, and it’s usually thought that this is easiest if they live in owned accommodation. But of course this depends on individual circumstances and whether this is affordable.
All the factors the court has to take into account are covered in Section 25 of the Matrimonial Causes Act 1973.5
Check Out Our “What Happens To House Prices In A Recession?” Guide.
How Is a House Sale Divided In A Divorce?
The best way to decide how a house sale should be divided in a divorce is between the two partners, in the same way that other jointly owner marital property should be divided. Though it’s wise to consult a lawyer, if you can avoid going to court it will benefit both parties.
But if you can’t come to an agreement about selling the house, the court will have to decide how the assets are divided.
The basic principle will be a 50:50 split between the couple, unless requested otherwise, but of course this could be affected by many issues, most significantly whether there are any children involved. In some cases it may be that there is more than one property involved, and here the decision may be to divide the properties between the couple and balance out the difference with other assets.
In all cases you should seek the service of a solicitor to make sure that your agreements are legally sound.
What If You Have A Joint Mortgage?
Having a joint mortgage is common, but fortunately there are several ways this can be dealt with in a split.
You must talk to your mortgage lender before you make any decisions, but here are the basic options:
- PAY OFF. If you are near the end of the mortgage payments, it might make sense for both partners to continue to pay until it’s paid off, and the house can be sold and the profits split.
- Sell the house, pay off the mortgage, and split the remainder. If you are in negative equity, where the outstanding mortgage is more than the value of your home, you will have to share the debt.
- BUY OUT. One partner can buy out the other’s share of the mortgage. You may need to borrow money to do this, in which case you will have to prove to the lender that you can afford to repay the entire mortgage. If necessary a guarantor mortgage can be used, where someone agrees to cover the repayment cost if you can’t.
- One partner could transfer part of the share of the property to the other. In this case the smaller stakeholder would be entitled to a percentage of the value if the house is sold.
- COURT ORDER. In England and Wales, a Mesher Order6 can be made by a family court, usually to protect the right of one partner to stay in the house and prevent it house being sold until children turn 18, or a Martin Order7 can be made to protect one partner’s right to stay in the house until that person chooses to move out, remarries or dies. This sort of order can normally only be made if the other partner does not immediately need money from the sale of the house.
In all cases you should take legal advice before coming to any decisions, as some of these options have implications which may cause financial problems in the future if not taken into account.
What If You Want To Sell Your House Quickly During A Divorce?
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- “Notice of home rights: registration (HR1)”. https://www.gov.uk/government/publications/notice-of-home-rights-registration-hr1.Last accessed 23rd Jun 2020.
- “Trusts of Land and Appointment of Trustees Act 1996”. http://www.legislation.gov.uk/ukpga/1996/47/section/14.Last accessed 23rd Jun 2020.
- “Part 73 – Charging Orders, Stop Orders and Stop Notices”. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73.Last accessed 23rd Jun 2020.
- “Form FL401: Ask the court to make a non-molestation order or an occupation order”. https://www.gov.uk/government/publications/form-fl401-application-for-a-non-molestation-order-occupation-order.Last accessed 23rd Jun 2020.
- “Matrimonial Causes Act 1973”. http://www.legislation.gov.uk/ukpga/1973/18/section/25. Last accessed 23rd Jun 2020.
- “What is a Mesher Order?”. https://www.lawble.co.uk/mesher-order/. Last accessed 23rd Jun 2020.
- “Martin Orders – How are they different from Mesher orders”. https://divorceformsonline.co.uk/martin-orders/.Last accessed 23rd Jun 2020.