When you are going through a divorce, one of the biggest sources of stress is deciding what happens to the family home. In most cases the house is the most valuable asset in the marriage, which can make it one of the hardest things to agree on. In this guide, the family law team at Davisons Law explains your options when it comes to selling the house in a divorce, so you can make an informed decision about what is right for your circumstances.
The most common option is to sell the house and divide the proceeds between both parties. This is the route many couples take, and it can be the best choice if there is no need to provide a home for children, or if one spouse cannot afford to buy the other out. Selling also allows both parties to benefit from any increase in the property’s value and offers an immediate clean break.
However, selling is not your only option, and it may not be the best one for you. It is important to speak to a divorce solicitor so they can understand what you want from the arrangement and guide you accordingly. Understanding the process and your legal rights from the outset will help you reach a fair outcome.
Who gets the house in a divorce?
There are no fixed rules for deciding who gets the house in a divorce. Instead, the courts weigh up a number of factors. These can include who legally owns the property, the financial contributions each spouse made towards buying and maintaining it, where any children will live and which parent is caring for them, and what the fairest overall outcome would be.
The family home is usually treated as a matrimonial asset in a divorce. If you have a prenuptial or postnuptial agreement in place, it is important to present this when going through a divorce, as it may affect how the property is dealt with.
Do I have to sell my house in a divorce?
Whether you need to sell your house during a divorce depends on several factors. Your solicitor will ask you to provide full financial disclosure, and these assets will then be divided into a fair financial settlement.
Sometimes there are not enough assets in the marriage to avoid selling the family home. In this situation, both spouses may have no choice but to sell the property and divide the proceeds.
You are only legally required to sell the property if a judge orders it. This can happen during financial remedy proceedings, where a judge steps in because the spouses cannot agree on a financial settlement, or through a court order that formalises the settlement you have negotiated with your spouse.
Until that point, you are free to explore other options that avoid selling the house. Even so, it is sensible to be prepared to sell if there is no other way to achieve a fair financial settlement.
Can my spouse force the sale of the house?
Many people worry that their spouse might force the sale of the family home. If the house is jointly owned, this is not possible without both spouses agreeing, or the court granting a property sale order. Even then, a judge will need solid evidence that selling is the best or only solution before granting one.
The court can also take steps to keep the process moving and to make sure both spouses cooperate. This might include an injunction to stop a spouse blocking house viewings, granting power of attorney to the willing spouse so they can manage the sale, or, as a last resort, evicting an uncooperative spouse.
Because failing to comply with a court order can be treated as contempt of court, it is important to seek legal advice if you find yourself in this position.
Alternatives to selling your house
Selling is not the only route. Depending on your circumstances, your solicitor may advise you on one of the following alternatives.
Buying out your spouse
If you can afford it, buying out your ex-spouse can be a good solution. It can also be tax efficient, as it transfers the assets by balancing them out rather than involving a cash payment. You would need a solicitor to handle the transfer of equity.
Part transfer of ownership
If you cannot afford a full buyout, a part transfer of ownership may be an option. This suits people who want to keep the property and benefit from any future increase in its value, but who need some cash now to move on. A divorce solicitor can set up a tenancy in common with an unequal division of equity on your behalf.
Mesher orders and Martin orders
There are also two court orders worth understanding if you are considering keeping the family home for a period before selling.
Mesher order
A Mesher order is a court order that allows one spouse to remain living in the house until certain conditions are met. It is common where children are involved and might state that they can stay in the home until the child has finished education. Once this ‘trigger point’ is reached, the house is sold and the proceeds divided between the spouses. A Mesher order will also set out how bills and the mortgage are paid in the meantime.
Martin order
A Martin order can be used where there are no children involved. It works in a similar way to a Mesher order, but instead allows one party to remain in the house until they remarry or for the rest of their life.
What else to consider when selling
There are several other things to weigh up when selling a house through a divorce.
Matrimonial home rights. You may have the legal right to live in the property even if it is owned solely by your ex-partner. These rights need to be registered at the Land Registry to prevent your partner from selling the house without your knowledge.
Your mortgage. If you are separating, speak to your mortgage lender to find out whether you would qualify for a mortgage on your own. This will help you decide whether keeping the house is realistic before you commit either way.
The property’s value. The value of the home needs to be considered as part of your financial disclosure. The court will accept either an estate agent’s valuation or an independent professional survey to assess its market value.
Tax implications. Tax also needs to be considered, although the regime is generally designed to make divorce-related sales as tax neutral as possible. Capital gains tax is usually not payable on the profit from the sale if you have moved out. Where a transfer of equity forms part of the financial settlement, you normally will not have to pay stamp duty on the share you are buying from your ex-spouse. Even so, it is always best to have your own situation checked to be sure.
How Davisons Law can help
If you are worried about selling your house during a divorce, our family law team at Davisons Law is here to help. Our experts can assess the best route for your circumstances and talk you through all of your options, giving you peace of mind during what can be a stressful time. Get in touch with our team today on 0808 3036 987.
