Can I force the sale of my house in a divorce?
- If you are both named on the title, you can't simply sell the property if one party doesn't want to sell.
- If the property is in just one name, then if sold, the sale proceeds could still be shared under the divorce settlement.
- Where you have a mortgage, you both need to keep up mortgage repayments. Read more - Who must pay the mortgage?
- Only a court can make an order to sell the property when you can't agree to jointly sell.
- If you're forced to pay the full costs of the house until it is sold, these can be clawed back as part of the divorce settlement.
- The court decides what share of the property you are due, even if you have an existing deed stating a share. This also happens in a Mesher Order.
- Ignoring an order to force a sale after your divorce places you at risk of going to jail, getting a fine or both.
- When can I force the sale of my house in a divorce?
- It's my house, in my name. Can I sell it?
- How do you sell the house when your spouse refuses to sell?
- What are the different types of Orders for Sale?
- What can I do when my ex is forcing a sale?
- I have children; will they force a sale during the divorce?
- I can't afford to wait for the divorce to go through
- FAQs
Forcing the sale of a house in a divorce isn't as simple as placing the property on the market and selling it. If the parties aren't in agreement, you'll be stuck with a buyer but unable to complete the conveyancing process.
There are points to consider:
- Is the house your marital or family home?
- Is the house held in both your names?
- Is the house a buy-to-let?
The other potential issues include one of the parties ceasing their mortgage payments or contribution toward living costs and who gets to keep the property if a sale isn't agreed upon. The divorce courts examine the parties' overall position and whether any children or dependents live in the property.
So... when can I force the sale of my house in a divorce?
You can force a sale if | You can't force a sale if |
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The above are just general rules, and the courts can decide what is best for both parties and their children/dependents. The court isn't going to force the sale of your house in a divorce if it makes the whole family homeless or unable to afford to live anywhere else.
Not quite. It doesn't matter whose name is stated on the legal title; if you are going through a divorce, it could be a marital asset. If you try and sell the house before the divorce is finalised, then you won't be able to because:
- TA6 Property Information Form. Within the standard protocol form that the seller provides to the buyer, the seller has to declare if they are giving vacant possession to the buyer. "When buying or selling a property, “vacant possession” means that the property is empty and empty of anything not contracted to remain on the day of completion, e.g. chattels, rubbish. You also have to declare, "If the property is not being sold with vacant possession, you’ll need to supply evidence that the property will be empty on the day of completion. If you knowingly make a false declaration, the contract of sale will be rescinded, and the seller will be open to a Misrepresentation Claim.
- Your spouse doesn't vacate the property. The buyer's solicitor will need your spouse to confirm she will vacate the property upon completion. As this isn't an option, if this wasn't confirmed for some reason, you exchange, and on completion your spouse and children are still living in the property then you will be in breach of contract. The contract of sale would need to be rescinded, and the seller would be exposed to the buyer's legal costs. Read more - Can I pull out after exchange of contracts?
How do you sell the house when your spouse refuses to sell?
During the divorce process, which can last from 6 to 24 months, if either spouse refuses to sell the jointly owned marital home before the divorce court settlement, it is tough to sell until the consent order is issued. Once the court order is issued and a financial settlement agreement is signed, you can sell the property following the standard conveyancing process.
Find a buyer, submit contracts, reply to enquiries, exchange and complete. You may encounter challenges, such as your ex being slow to sign documents. However, if they don't sign the documents within a reasonable time, they could be at risk of being in contempt of court, which may mean jail, a fine, or both.
If you're looking for information on how divorce can affect your inheritance, check out our article 'Is my spouse entitled to my inheritance when we get divorced?'
What are the different types of Orders for Sale?
- Refuse a sale. The court could refuse the sale altogether.
- Refuse a sale but make an order regulating the right to occupy the property. A decision is often taken where one of the spouses needs to reside in the property or their partner is abusive.
- Order a sale. The court agrees to the sale, and the house can be sold. If your ex-husband or wife refuses to adhere to the court's instructions, they will be held in contempt of court. Under the Contempt of Court Act 1981 you could go to prison for up to 2 years, get a fine, or both.
- Order a sale but suspend the order for a short period. This is often the case when children under 18 or dependents live in the property. The court agrees to the sale, but after the children turn 18, or the dependents can find new accommodation.
- Partition the co-owned property (only awarded in exceptional cases). This rarely happens, but it is an option to separate a property into two living accommodations where both parties can live. However, not many spouses want to live next to their ex-wife.
The process of forcing a sale differs when you aren't divorcing. Read more - Can I force the sale of a jointly owned property?
Where your spouse is forcing a sale, they can only do so once they have an order of sale from the courts. Doing that is very long and complicated, so getting a solicitor to help you would be best.
If your partner is trying to force you to sell but isn't doing so through the courts, IE, they are threatening you, then inform the police and seek help from a solicitor. You may get a Non-Molestation Order, which will stop the threats and allow the divorce process to come to a final settlement. Read more - What is a Non-Molestation Order?
I have children. Will they force a sale during the divorce?
This question alone is only part of what the courts will look into when deciding; however, if you have children under 18 or dependents, then it is doubtful a court will award an immediate order to sell.
With delays in the divorce court, if your ex-husband or wife refuses to pay money toward the house, you could be left with the mortgage and living costs. If you choose not to pay as well, then you expose yourself to getting a bad credit rating, which will affect any future borrowing.
This is what you can and should do if your partner stops paying towards the house costs:
- Inform your mortgage lender. You need to inform the mortgage lender of the situation. They may be able to offer mortgage holidays or structured payment plans to help you. Find out which of these will affect your credit report, as this could mean you can't get a mortgage until your credit score improves.
- Keep up to date with mortgage repayments. With both names on the mortgage, you are both liable to pay the mortgage each month. It doesn't matter who does, but it does matter if it is missed. Change the Direct Debit to your account so that you are in control of when the mortgage gets paid.
- Ask for a Maintenance Order. You can ask your solicitor to apply for a maintenance order to force your partner to contribute. Until such an order is granted, if it is, keep up to date on all your house costs.
- Log all your payments. While you might be paying for everything now, in the future, you can look to claw back your ex-partner's share as part of the final divorce settlement.
Caragh is an excellent writer and copy editor of books, news articles and editorials. She has written extensively for SAM for a variety of conveyancing, survey, property law and mortgage-related articles.
