We are asked many questions regarding selling a house after divorce including “Can I force the sale of my house in a divorce?”
In the majority of marriages, the most important matrimonial asset is the marital home, therefore deciding what to do with the property where both spouses live is often a significant challenge when it comes to divorce and property.
It is quite common for the house to be sold and proceeds are divided up accordingly. But what happens if one party does not want to sell up?
What circ*mstances can you force a house sale?
Whether or not it is appropriate for married couples who are separating or divorcing to sell the marital home will often depend on the family circ*mstances. The property can be sold if both partners agree, but can a co-owner force a sale of a house and under what circ*mstances can you force a house sale?
In essence, a co-owner cannot automatically force a sale of a house If the other co-owner does not agree.
They cannot just sell the property without first applying for a ‘force sale of a house court order’, and the court will always take various factors into consideration.
The court will consider several aspects regarding family circ*mstances, but primarily whether the property is a family home to dependent children.
Other factors include if there would be adequate proceeds from the sale of the home to enable both partners to rehouse themselves, and any children comfortably.
Jointly owned home with no children
If the matrimonial home is jointly owned and there are no children, it will often be a simple matter of putting the property on the market, splitting the proceeds, and going their separate ways.
Although it may be more difficult for either ex-spouse to purchase their own new property, the court is less likely to prevent a sale from going ahead if there are no children involved.
Jointly owned family home with children
In the scenario that there are still children under the age of 18 living in the family home, this will often make it much more likely that the sale of the property will not be considered appropriate.
The court may intervene to specify that a sale cannot go ahead until the children have finished full-time education or reached 18.
Often the mother will remain in the marital home with the children and the father will move out – and he might also be required to pay his share of any mortgage.
Home owned in one name
Although it may seem that a marital home whose deeds only contain the name of one spouse would simply revert to that spouse, this is not necessarily the case.
Depending on the length of the marriage, any property – whether it is jointly owned or only in the name of one spouse – will be shared between the divorcing parties, generally with a 50:50 starting point.
Furthermore, while the divorce process is still ongoing, spouses have ‘home rights’ in their shared matrimonial home.
Even if the property is owned by just the husband or wife, their spouse retains a right to live in the property until the divorce, annulment or dissolution has been finalised and a court settlement agreed.
How to sell a house when a spouse refuses
If either spouse refuses to leave the marital home prior to any court settlement, it is generally not possible to force through a house sale.
It will be necessary to wait until a formal settlement has been reached and ideally approved by the court with aconsent order.
Even then, it may not be possible to put the property on the market if it is jointly owned or if the court has provided rights for the other party to carry on living there.
In either scenario, if the other spouse does not agree to put the property on the market, the only way to get a sale will generally be to go to court.
Can a court force the sale of a house in a divorce?
Yes. The court can make an order for the matrimonial home to be put on the market as part of the divorce settlement.
These types of court orders are known as Property Adjustment Orders. They can require the immediate sale of property – or a deferred sale (eg after any children reach 18).
The court will also be able to decide how any assets from the sale of the property should be divided up between the divorcing parties.
How to protect your home
If you are selling a matrimonial property upon divorce, you should obtain a property settlement agreement in the form of a consent order to make sure the other party carries out what they have agreed to.
For example, if you have agreed to split the proceeds of a sale 50:50, a consent order will legally enforce this agreement.
A property settlement agreementcan also prevent one party from making financial claims against the property of their former spouse several years down the line.
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