Dealing with the shared matrimonial home can be one of the hardest aspects of a divorce. One or both parties often want to keep the property, which is usually a couple’s main asset. We look at how the courts deal with splitting a house in divorce and answer the question, Do I have to sell my house in a divorce?
The courts prefer that couples agree on matters between themselves when separating, including deciding who gets the house in a divorce and how assets will be divided. If you and your former partner are able to reach a decision, this can be approved by the court, and the judge will make a consent order so that it is legally binding.
Where an agreement cannot be reached, you can apply to the court for a financial order. There are no particular divorce rights to property that cover all situations, and each situation will depend on the assets available and the needs of any children of the family.
What happens if we both want to keep the house?
Splitting the house in a divorce can be difficult if neither of you wants to give up the property. A mediator can work with you both to try and find a solution. For example, one of you could have a larger share of other assets, such as savings and investments, if available, so that another home can be purchased.
If the court is asked to decide, it will prioritise the needs of any children under 18. Therefore, this means that the person who has the day-to-day care of the children may retain the property.
Another option is to sell the house so that you can both purchase smaller homes. If this is not possible, the sale could be deferred until the children reach 18. At this point, the property could be sold, and the sale proceeds divided.
In dealing with divorce and property matters, the court will aim to meet the needs of both parties, which means providing a home for both of you wherever possible. The law does not provide set rights to property after separation, and if you both want to keep the house, a decision will be made on the particulars of each case. A family lawyer will be able to go through the options with you and discuss how you might be able to keep your home.
Can we agree to keep the house as a joint asset after the divorce?
It is not usually recommended to keep a property as a joint asset after a divorce. There are several reasons for this, including:
- The person no longer living at the property will need to rely on the other person to maintain it
- If the property is subject to a mortgage, difficulties will arise if the payments are not made
- An amicable relationship could change over time, and disagreements arise
- The person who has left the property will find it difficult to buy a new property if they are on the mortgage, as lenders will be reluctant to offer another mortgage. They will also have to pay additional Stamp Duty, as a purchase will be classed as a second home
If it is not possible for one person to take on the mortgage in their own name, the best option may be to sell the house after the divorce.
How long do you have to sell a house after divorce?
Selling property before a divorce settlement can make the process easier, as you will have funds available for your divorce. If you decide to do this, you should speak to a family law solicitor before going ahead to ensure it is right for your circumstances. It is often the case that the matrimonial home is not dealt with until a financial order is made.
If the order states that the house should be sold, you and your former spouse will be expected to take reasonable steps to progress the sale, including instructing an estate agent, putting the property on the market, and considering realistic offers.
Should you have questions on how to sell a house during divorce, please speak to our property solicitors who will be more than happy to help.
How is the value of the house determined in divorce?
The courts prefer that a chartered surveyor be used to value a property for divorce purposes. While couples sometimes obtain informal valuations from estate agents and use the average figure, a chartered surveyor is preferable, particularly if you are struggling to agree on matters between yourselves.
How to avoid selling your house in a divorce
If you want to keep your home following divorce, there are several possible options.
You may be able to offset your spouse’s share of the property against other assets, for example, giving them a larger share of the available pension provision or savings.
Another option may be to remortgage. If you are able to take on a larger mortgage or have the loan over a longer period, you may be able to buy out their share.
If you are caring for minor children, then you can ask the court for a Mesher order. This defers the sale of the property until the children are adults. A similar order may be available even if children are not a factor. This is known as a Martin order and allows a spouse to stay in the property for as long as they want. A Martin order is generally only used when there are sufficient funds available for the person leaving the property to buy another home.
For information on our related services, see our divorce solicitors page.
Matrimonial home rights
In some instances, a spouse might not have their name on the title deeds of the shared home. If this is the case, they will still have rights to the property after separation. Matrimonial home rights give spouses and civil partners the right to live in a shared matrimonial home, even if they are not a legal owner.
Your solicitor can register your matrimonial home rights at the Land Registry, which will protect your interests by notifying a potential buyer of the property that you have the right to live there.
For information on our related services, see our property disputes page.
How can we help?
At HPLP Solicitors, we specialise equally in property and family law, meaning we can provide you with expert advice and representation in a divorce and in splitting property following separation.
Contact our family law solicitors
To speak to one of our family law solicitors you can call us on 020 7553 9000, send an email to info@roselegal.co.uk, or use our contact form to request a call-back.