In This Post
When couples divorce, there are often a lot of tough decisions to make. One of the most contentious may be what to do with the family home. If one spouse wants to sell and the other doesn't, can they legally force a sale?
In this blog post, we will explore everything you need to know about forcing a house sale in a divorce settlement. We will cover topics such as:
- Is it possible to force the sale of a house?
- What factors do Courts consider when making such a decision?
- How much money you could stand to gain or lose in a forced sale?
- And more...
What Circumstances Allow You To Force A House Sale In The UK?
If you are married or in a civil partnership, the right to the live in the family home belongs to both parties, whether or not your are named on the property title deeds. Therefore, if one partner refuses to move out, the other spouse cannot force them to leave without a Court order.
In the UK, there are certain circumstances in which a court can force the sale of a family home when divorcing couples cannot come to an agreement.
This could occur after the Court makes a Property Adjustment Order relating to the marital home, as part of your overall <bloglink>divorce settlement.<bloglink> Once the court has determined the settlement (including the division of the marital home), then a person could seek an enforcement order to compel their ex-spouse to sell (if for some reason, they still refused to do do) and therefore implement the Court settlement.
A forced sale could also occur when the parties have reached a divorce settlement agreement by consent (ie. outside of court), but nevertheless one partner still refuses to move out. In such as case, the other spouse could seek an Order for Sale of the property.
What Does The Court Take Into Account When Deciding Whether To Force The Sale Of A Property?
If you already have a Court settlement or a Court approved <bloglink>consent order<bloglink> that divides the property between you and your ex-spouse, then the Courts will be very likely to grant an Order of Sale to enforce compliance, should one party still refuse to sell.
If you have not yet agreed how the property should be divided, then you will first need the Court to determine or approve your divorce settlement before either party can seek an Order of Sale.
When deciding how the property should be divided as part of your divorce settlement the Court will weigh up a number of factors, including:
In some cases, the Court may decide that they don’t want to order a sale and instead will transfer the property from one spouse to another. In this case, the property will not be sold but instead the other spouse may receive a larger share of the divorce settlement (aka <bloglink>"Ancillary relief"<bloglink>) to offset the property value. You can learn more about how the Courts deal with the marital home during a divorce <bloglink>here.<bloglink>
What If There Are Children Living In The Property?
If there are children living in the property it is far less likely the Court will make an order for an immediate sale of the property. The Court's first priority in divorce proceedings is always the welfare of any children involved. Therefore, the Court will usually take into account their needs and try to ensure they have a stable living environment.
The Court may decide that it is better for the children that one parent remain in the family home, while the other parent moves out. This is often the case where moving home would mean changing schools, and a disruption to the children's education.
If this is the case, the court may decide to delay a house sale until the children reach adulthood, or even until they finish higher education such a college or university.
They can do this by making a <bloglink>Mescher order.<bloglink>
Until your divorce is finalised, either spouse cannot evict the other against their will. This is because married couples and civil partners enjoy 'home rights' which are protected by the Courts, even if they are not a named owner on the property title deeds.
This means that, until the Court has determined your divorce settlement (or approved a consent order), either party has the right to stay in the property and it cannot be sold if they refuse to leave.
After your divorce is finalised, then either party can apply for an Order of Sale if their ex-spouse still refuses to move out (unless a Mescher Order or <bloglink>Martin Order<bloglink> is in place).
If you are the non-owing spouse then it's important to know that you must <bloglink>register your home rights<bloglink> asap if you want them to be protected.
What Orders Can The Court Make?
The court can make a variety of orders when it comes to the sale of a marital home. Depending on the circumstances, this could include an Order for Sale, or an Occupation Order which would allow one party to remain in the property until it is sold. The possible outcomes are:
- The Court orders the immediate sale of the property
- The Court orders delayed sale of the property (eg via a Mescher Order or Martin Order)
- The Court refuses to make an order of sale pending conclusion of your divorce settlement
- The Court makes an occupancy order pending the conclusion of your divorce settlement
What If You're Not Married?
If you are not married or in a civil partnership then you do not benefit from the special protections that the Court awards to cohabiting spouses.
Where you are not married, the first question to answer is whether or not he property is jointly owned or not, and if it is jointly owned, whether that is as Joint Tenants or as Tenants In Common.
The property is in one person's name only
If the property is solely in one person's name then that person has control over whether or not it is sold. The non-owning party will not be able to do anything about this unless they can prove that there was an agreement between them for a certain amount of ownership. If not, then the owning party can simply give the other party notice to move out, and the property can then be sold.
The property is jointly owned as Joint Tenants
If the property is jointly owned as Joint Tenants, then both parties have an equal say in any decision to sell and can refuse to do so. In this case, your best option is to reach an agreement with your partner out of court. If you find yourself stuck in this situation it’s important to consider getting legal advice from a solicitor before making any firm decisions.
If you simply cannot reach an agreement to sell then you will need to seek an Order of Sale from the Court. But to do this you must first change the Joint Tenancy into a Tenants in Common ownership by applying for a ‘notice of severance’. The title to the property will then have to be amended before any further action can be taken.
Obtaining a notice for severance is fairly straightforward:
- Write a letter signed by all owners agreeing to the change (the letter needs to include the address of the property; the land certificate number; and the names of all registered owners).
- Include a statement that says something along the lines of ‘from today, we shall own the property listed as tenants in common rather than as joint tenants’ .
- Have all parties sign and date the statement.
This effectively terminates the tenancy and gives both parties the right to sell their half share of the property. It best to have a solicitor complete the notice of severance for you.
When you change the ownership to Tenants in Common, make sure you and your partner first come to an agreement on what percentage each of you will own under the new arrangement. It could save both of you from costly disputes later down the road!
The property is jointly owned as Tenants In Common
If the property is owned as Joint Tenants in Common then one party can apply for an order of sale, even if the other party has refused to. However, the first step is to see if the other owner is able to 'buy you out':
Can One Owner 'Buy Out' The Other?
Where people <bloglink>co-own a property<bloglink> the percentage of their ownership might differ. For example, one party might own a 60% interest in the property while the other owns 40%. In this case, each party owns their interest in the property rather than one or both jointly owning the entire property.
So, if one tenant no longer wants their share of the property, they are free to sell it off - and the other owner is free to buy it. In this case, the co-owner has to agree to the sale. This is the easiest route to releasing equity in a property where one party does not want to move out or sell their share.
If the other owner cannot afford a buy out, or simply refuses to do so, then the next step is to obtain an ‘Order for Sale’ to force the sale of the property.
Obtaining An Order To Force The Sale Of The House
Applying to Court for an Order of Sale can be costly and time consuming, so should only be taken as a last resort.
The Court will hear from both parties, and make a decision about whether or not a order should be granted to force the sale of the property. In doing so, the Court will take into consideration both you and your partner's original motivations for purchasing the property; the well-being of any children in residence (which is paramount); and the interest of any creditors or beneficiaries who are stakeholders in the property (such as your mortgage lender).
What Are The Pros And Cons Of A Forced House Sale?
Forcing a house sale in a divorce settlement can be difficult for all parties involved. It can be a time-consuming and expensive process; as if your co-owner or spouse won't agree to sell then you may need to embark on Court proceedings. It can also be risky, as it may mean you receive less money than the actual value of the property. This is because when selling on the open market, various costs – such as estate agent fees, surveyors’ fees and legal costs – will have to be deducted from the selling price. It’s important to remember that these costs must come out of your share of the sale too, so they could significantly reduce your profit when you receive it. A forced house sale could also mean an ex-spouse is unable to stay in the family home, which could be emotionally difficult and may lead to other elements of your separation becoming more acrimonious.
The main benefit of a forced house sale is that it provides a solution to what may otherwise be an impasse. It provides a final means of releasing equity in the property, when you are unable to reach agreement any other way.
How Much Money Could You Gain or Lose in a Forced Sale?
It’s important to understand that there is no simple answer when it comes to how much money you could gain or lose in a forced house sale. The amount of money you would receive if the Court orders a sale depends on several factors, including the current market value of the property, the cost of any necessary repairs or renovations, and any fees associated with selling the home. It could also depend on how quickly you need to sell the house and whether you want to keep it in its current condition or invest in some improvements.
How Much Does It Cost To Force The Sale Of A Property Through An ‘Order of Sale’?
This typically depends on how long the court takes to Come to a decision and how complex you case is. But typically the process can cost anywhere between £2,000 and £5,000.
How Long Does It Take To Force The Sale Of A House?
Applying for an order of sale can take several months - and even more in the case of any complications. At worst, the process can go on for 18 months or more. Therefore, the fastest way to work through the issue is for both parties to reach an amicable agreement if at all possible.
Forcing a house sale in a divorce settlement is not something to be undertaken lightly. It can be costly and difficult and may lead to further acrimony between the parties. However, it can also provide a solution where all other avenues of agreement have been exhausted. Before embarking on this course of action it is important to seek advice from legal professionals, to ensure that the process is undertaken correctly and with due consideration for all parties involved.