Divorce is one of the most disruptive life events a person can go through. If you are facing the prospect of having to sell your home and move as a result of divorce, this can make things even more difficult. Selling a house during a divorce can be a very confusing and emotive subject, so it is sensible to go into the situation clear-eyed and well-informed.
In this blog, we cover whether you can keep the house after divorce, how you would go about selling, selling before your settlement is agreed, if you have the right to refuse to sell your home during divorce and your options for avoiding this outcome.
It should be noted that this blog is not intended as legal advice and is for educational purposes only. Should you wish to discuss your specific situation, our divorce and separation solicitors will be happy to answer any queries you may have.
For expert help with divorce and separation, please call one of our offices in Banbury, Bicester or Rugby, or simply fill out our enquiry form and we’ll get back to you as soon as possible.
Can I keep the house after the divorce?
When it comes to the marital home, your rights will depend on the situation. You should seek legal advice as soon as you know divorce is a possibility to make sure you are clear on your rights.
If you are the sole owner of the property, then you will have the right to keep the property, although its value may have to be considered as part of the division of finances if the property is considered a ‘marital asset’. Whether a property will be considered a marital asset is not always straightforward so, again, legal advice is very important.
If you jointly own the property with your spouse, then you would need to agree with them who keeps the house or have a court decide this for you.
One thing to note in a divorce with a house is that your legal rights to stay in the property are only part of the picture. If your spouse is on the mortgage, then you would likely need to apply for a new mortgage and be able to demonstrate that you can cover the mortgage payments with your sole income.
How do you sell a house when separating?
If you are selling your house during divorce, then you will need to be able to show that you have achieved fair market value for it. You should get the property professionally valued and, if possible, agree this valuation with your spouse in writing.
Where the house is in your sole name, you have the right to sell it, however, your spouse will likely have matrimonial home rights, meaning you would need to give them notice of the sale and time to find somewhere else to live. If the house is jointly owned, both spouses would need to consent to the sale.
When the property is sold and any outstanding mortgage is repaid, then any balance remaining will normally need to be considered as part of your divorce settlement.
Dealing with divorce and selling a house at the same time can be very challenging. Working with a firm like Brethertons Solicitors that offers high-quality family law and conveyancing services can make the process simpler and less stressful.
Can you sell your property before your divorce settlement?
There is nothing to stop you from selling a property before you have a divorce settlement in place, but its value will still need to be considered as part of the divorce settlement. A pre-divorce sale can make it easier to split assets by unlocking the capital tied up in your property.
That said, you must ensure that you get fair market value for the property. If there is any suggestion that you sold the property for less than its true value, then you might be required to make up any disparity in value as part of your settlement.
Can I refuse to sell my house in a divorce?
Legally, if you own a property with your spouse, you cannot simply refuse to sell if they wish to. In the worst-case scenario, they would be able to get a court order forcing you to sell. However, it very rarely comes to that as it is usually possible to agree on a suitable alternative.
If you are the sole owner of the property, then you would only need to sell your home if this was necessary to meet your financial obligations under any negotiated settlement or court-ordered division of finances.
If you are determined to avoid selling your house after divorce, then your options will depend on the situation, as covered below.
How can I avoid selling my house in divorce?
Splitting the house in divorce can be complicated, especially as it is often the most valuable shared asset. Some approaches you might consider include:
- Buying out your spouse’s share – If you have the funds available, you could simply agree to buy your spouse’s share of the property. This can be achieved through a transfer of equity, which removes your spouse’s name from the property title. If you have a mortgage, your mortgage provider would need to agree to this and you may need to apply for a new mortgage.
- Offsetting your spouse’s share with other assets – Where there are other substantial assets, such as pension wealth, it may be possible to agree that your spouse takes those assets in exchange for giving up their share of the family home. It is important to get an independent valuation of all relevant assets to ensure such a trade is fair to both parties.
- Mesher Order – This allows you to defer the sale of the property to a later point. This is commonly used where there are children still living at home, with the Order allowing one parent to stay in the family home with the children until all the children have left home, at which point the property is sold. This can help to minimise disruption to children during divorce.
Get expert divorce and property advice in Banbury, Bicester, and Rugby
For expert help with divorce and rights to property, please get in touch with a member of our team. We can also assist with any other questions or concerns you may have about divorce and separation.
We have offices in Banbury, Bicester and Rugby working with clients across Coventry and Warwickshire, the West Midlands, Oxfordshire and nationwide.
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