Selling a house after divorce or separation
If buying a home is one of the most stressful events in life, then selling a house after divorce or separation ranks alongside it. The combination of financial matters with potentially complicated emotions can mean the outcome causes issues for years to come.
Fortunately, it’s possible to sell a house after a separation or divorce without causing any additional problems. By staying calm, being organised, getting advice and proceeding with everyone in agreement, you can get the best outcome for all involved. And that includes if selling your house after a split will impact children.
Advice on selling your house during or after divorce
Even with an amicable separation, it’s worth seeking some independent advice before selling your house. The best option will depend on your specific situation, and changes if children are involved, whether you are married or in a civil partnership, and the length of your marriage.
It’s important to understand your priorities, and those of your partner. Are you both looking to sell as quickly as possible to move on with your lives? Or would one of you prefer to remain in the home?
If you’re struggling to reach an agreement, it may be worth investing in independent mediation. Having an impartial third party offer their perspective can help you both compromise where needed, and avoid emotions complicating matters.
But in all cases, it’s worth speaking to a specialist family law or divorce solicitor as quickly as possible. They can make sure everything is in order, and explain the legal implications of different earnings and payments, children, medical conditions or other complications.
You should also talk to your bank or mortgage provider to set divorce rights on the property, and avoid your ex-partner from transferring, selling or mortgaging your property without your consent.
Finally, you should get a full valuation from a surveyor to establish the current market value of your home, so there’s an agreed price to base your decisions on.
Do you have to sell your house due to a divorce?
Many people find that selling their house is the simplest option after a divorce or separation. It’s the quickest and easiest way for you to both divide any financial returns, and get a clean break to move on with your lives.
If you have a joint mortgage, selling the family home will mean you can separate your financial circumstances from each other quickly once the property is sold.
But it’s not the only option. You may decide one partner should stay in the house, particularly to provide a stable home for children. And there are a range of informal or legal routes to ensure the arrangement is fair for both parties.
The only time you may have to sell your house is if your case goes to court. A judge will then look objectively at all the circumstances, and can potentially issue a court order to force a sale. In this situation, it’s possible to appeal, but this will incur additional legal fees.
Securing your property rights during a divorce
It’s important for both parties to understand, and protect, their rights to a property. Even if you’re both happy to separate, it means that your ex can’t sell the house, transfer or increase the mortgage, or remove your ownership, without consent.
The first thing is to confirm the names of the home owners via HM Land Registry. This will allow you to check the Title Register (deed) for a cost of £3. If your name isn’t recorded, you can then register your interest by completing a HR1 form, and secure your rights via a Class F Land Charge registration. This is for properties registered in England and Wales, as there are different registries for Scotland, and Northern Ireland.
This gives you the protection of a Matrimonial Home Rights notice under the Family Law Act 1996, and ensures you can only be forced to leave via a court order, and you will be informed of any intention to sell or issues with your mortgage. This applies to England and Wales, and in Northern Ireland you can apply for a matrimonial charge. In Scotland it’s a little more complex and you should seek specialist advice.
You should also inform your bank or mortgage lender to avoid any changes being made intentionally or by mistake without the other party consenting.
The share of ownership will depend on whether you are in a Joint Tenancy where both spouses own 100% of the property, or a Tenancy in Common where a specific ownership percentage has been agreed by both partners.
Speaking to a solicitor will also ensure that both parties understand and protect their rights during a separation.
Who gets the house in a divorce?
This is where things can start getting complicated, and selling your home after a divorce may be the quickest and simplest option.
The property options after a separation can also include one party buying the other out, transferring part of the value as a financial settlement, or continuing the current arrangement even if one partner has moved to a new home.
All of these choices can become complicated financially, and will also mean ongoing agreements with your former partner, which can become strained over time. Especially if there are issues with mortgage payments, or the cost of repairs and maintenance.
Other factors which make dividing ownership more complicated include:
- The equity in the property
- Any remaining mortgage term and amount
- Whether you bought individually, or as a joint purchase
- The previous financial contributions made by each party
- The length of your marriage and your respective ages
- Your individual incomes, earning capacity and any other financial responsibilities
- Other assets you both own
- The health of both partners
If you have been married for a longer period, it’s assumed in law that one spouse will rely more on the income of the other. Generally, 1-5 years is considered short term, 5-15 years would be medium, and a long-term marriage would be above 15 years.
You can make an informal agreement for one partner to remain in the home, and how any future mortgage payments or financial returns will be split. But it’s a good idea to get this clarified and agreed via a solicitor to have a legal agreement in case of any future issues.
Alternatively, a divorce settlement may dictate how a house is divided and which parties may be required to continue contributing to any outstanding mortgage.
Who gets the house in a divorce with children?
The same options are available for selling or dividing your home when children are involved. And most parents will be focused on doing what’s best to maintain a stable family environment. This can help to keep things amicable while you decide what to do.
So, you could sell your house, transfer ownership or a share of the property, or keep existing arrangements in place for an agreed length of time. And once again, it’s important to consider all factors carefully before getting legal advice on any new agreements from a family law and divorce solicitor.
The biggest difference is if you can’t reach an agreement without a court deciding. The wellbeing of children will be the primary concern for a judge. So, it’s more likely that a sale will not be considered appropriate, and may be actively prevented. The likely outcome is that the mother and children will be able to remain in the marital home, and the father may be required to pay a share of any mortgage after moving out.
What is a Mesher Order?
A Mesher Order is a legal instruction which defers the sale of a house until a specific trigger event has been reached. This could be when a youngest child reaches the age of 18 or finishes full-time education, at which point the property can be sold and proceeds divided in accordance with the court judgement.
Alternatively, the occupying ex will have the property transferred to them at that point, and the non-occupier will then receive a settlement.
The downsides include being prevented from selling if circumstances change, and both parties remaining on the mortgage. So, whoever leaves will find it much harder if they need a mortgage to buy their own new property.
A deferred charge Mesher Order does exist, which is more complicated. This transfers the ownership and mortgage into the name of the primary carer. But the other spouse retains a percentage interest secured by a second mortgage in their favour.
But even in this case, there are substantial downsides to consider. For example, you may struggle to get a mortgage due to your age when the Mesher Order is triggered, or capital gains tax may apply to any proceeds if you’ve managed to already buy another home.
What is a Martin Order?
This is similar to a Mesher Order, but is typically used if a couple doesn’t have children under 18. This also relies on a specific event to determine when the house can be sold.
Examples can include if you remarry, or start to cohabit with someone else, or following the death of one spouse. So, this can be used to allow one partner to legally occupy a property for life.
Again, this means continuing communication with your ex, and you may be liable for capital gains tax if you purchase another house to live in.
Can I sell my house before a divorce?
Property markets can be unpredictable, and you may decide to sell your house before starting the divorce process. This will work more effectively if you’re separating amicably, and you’re both able to agree terms to split any proceeds.
Selling prior to a divorce can benefit you financially by giving you some extra money to cover some or all of the costs and start your new life. And it can also give you a psychological boost by starting to let go of the past. It also avoids any potential complications from court judgements, which might prevent you selling your home for an uncertain period of time.
One downside to selling prior to a divorce is if the sales process takes a long time. This could delay your separation, which can be a problem in other ways. It’s also worth considering the UK property market to decide whether you’ll get a higher valuation now, or if prices will increase over the coming months.
Who gets to stay in the house during separation?
Both parties are entitled to stay in the matrimonial home during a divorce or separation. This applies whether the house is in the name of one owner, joint tenants, or tenants in common.
Separations are often extremely stressful, but for a spouse to be prevented from staying in the house, you would need sufficient grounds to apply for a court injunction. You would also need to demonstrate that they have somewhere else to live and could afford to do so until the divorce proceedings have concluded.
While you don’t have to leave your home voluntarily, you might choose to give your spouse some space. The problem is that once you’ve left, you aren’t able to move back in if your ex then objects.
Can I sell my house if my ex doesn’t want to?
If you’re married, in a civil partnership or living together, then you can’t sell your house without the consent of your partner. And that applies even if you’re the sole owner and the only party named on the mortgage. However, if you’re not a spouse, then your right to occupy would need to be declared by a court and only lasts for six months, with a potential six-months extension.
In all circumstances, the best solution would be to find an option for the family home which satisfies everyone. But if that isn’t possible, you can raise an action of division and sale in court.
Sales can be allowed if one party is unable to sign for medical reasons, has disappeared and can’t be found, or if permission is being unreasonably withheld. Conditions can also be attached, such as a division of the proceeds with your ex, the sale price, or a set date for completion. So, you might find yourself under pressure to sell the property quicker, and for a lower amount, than you wanted.
How to sell your house after a divorce
General advice on selling your house quickly will apply if you’re moving due to a divorce or separation.
That includes making any cost-effective improvements to the family home. Certainly you should give it a thorough clean, and fix any problems when you decide to sell. It’s also important to spend some time making sure adverts will stand out, and that house viewings are encouraging for potential buyers.
Decluttering will be easier if one, or both of you, have already moved out of the house. But one tip is to try and avoid mentioning your divorce unless a potential buyer asks about it.
If someone knows you are selling due to a divorce, they may be put off by the potentially slower and more complicated process. The home buying chain can effectively be doubled if ex-partners aren’t agreed on moving, or it gets caught up in other separation disagreements.
The flipside is that buyers might assume you’re in a hurry to sell and move on with your life. And offer a much lower bid as a result. Especially if you’re trying to sell your home before starting your divorce proceedings.
If a buyer asks directly, you shouldn’t lie about your situation. But you can lessen the risk by emphasising the agreement between you and your ex-spouse, by one or both parties moving in with friends or family to help shorten the property chain, or by using a home buying service to get a fast offer based on the estimated market value.
If you are currently going through a divorce and need some assistance in selling your home, National Homebuyers can be of assistance. We provide a quick, individual and no obligation valuation for properties and we guarantee that a cash offer will be made. We buy your house directly and privately, with no third party involvement, making it a simple and easy process.
Please contact us on 08000 443 911 or complete our contact form and one of our friendly team will call you back.