Selling a House During Divorce

Max Royston

Selling a house is complicated enough at the best of times, but when divorce enters the picture, the emotional and financial complexities can feel overwhelming. When a relationship ends and you face separation or divorce, deciding what happens to this significant space becomes one of the most delicate aspects of separation.

If you are selling a house due to a divorce, it’s important for everyone involved to know your legal rights, so your first step should be to consult a lawyer. If things between you are not too strained, jointly speaking to cash house buyers may be the quickest and easiest solution.

Whatever your circumstances, this guide is designed to walk you through the complexities of selling a home during divorce, offering practical advice to help you make informed decisions during a difficult time.

Legal considerations

Do you have to sell your house during a divorce?

One of the biggest questions you may have during a divorce is whether you’ll need to sell your home. It’s a tough situation, your house is more than just a roof over your head – it likely holds a lot of memories. While every case is different, it can be helpful at this stage to understand your options.

If your home is tied to a mortgage, the first step is to notify your mortgage provider about the change in circumstances as this will ensure you stay ahead of potential complications. Whether you or your ex-partner are responsible for the payments (or if you’re splitting them), the mortgage must still be paid until it’s resolved; this can be done either through selling the house, paying it off, or removing one name from the agreement.

If your name isn’t on the property deeds, it’s crucial to protect your rights. You can do this by registering your interest with a Matrimonial Home Rights Notice, which a lawyer can help you set up. 

Can you be forced to sell your house in a divorce?

The idea of being forced to sell your home can feel very scary, but it’s not always inevitable. Depending on your situation, there may be alternatives worth exploring.

In cases where cash is needed quickly, perhaps as part of a settlement agreement, a sale might be the simplest solution. However, you may have other options to consider:

• One partner buys out the other: If one party (the “in-spouse”) wants to keep the property, they can buy out the other’s share (the “out-spouse”). This arrangement is especially common when children are involved, as it provides them with stability and continuity.
• Re-mortgaging the house: If a buyout isn’t immediately possible, remortgaging can sometimes provide the funds needed to resolve ownership disputes. This involves refinancing the property under one party’s name.

When neither party can afford to buy the other out, or if you simply can’t agree on the property’s value, selling the house may be the only practical choice. In this case, the home is sold either on the open market or through a cash house buyer, and the proceeds are divided between you.

In some cases, couples agree to delay selling the house. For example, they might both retain ownership until the market improves or wait until their children are older and less impacted by the move. If both parties are on the same page, this can be a flexible solution that buys time.

Who Gets The House In A Divorce When Children Are Involved?

When children are involved, deciding who gets the family home can feel even more complicated. While both parents may have a valid claim to the property, especially as it’s often the most significant marital asset, courts prioritise the practical over the emotional. The key question is: how can the housing needs of both parents and, most importantly, the children, be met in the future?

Several factors come into play during negotiations about the family home, including:

• Income and earning capacity of both parties.
• Standard of living maintained during the marriage.
• Pension provision and financial security for both individuals.
• Duration of the marriage and the age of each party.
• Marital conduct, though this is rarely a significant factor unless it directly impacts financial matters.
• Most critically, the welfare of the children, especially if they are under 18.

Courts aim to ensure a stable home environment for children. In many cases, it’s seen as beneficial for children to remain in owned accommodation, providing continuity during a time of upheaval. However, this depends on whether retaining the property is financially realistic given the circumstances.

The legal framework guiding these decisions is outlined in Section 25 of the Matrimonial Causes Act 1973, designed to ensure a fair and balanced approach.

What is a Mesher Order?

A Mesher Order is a legal arrangement that allows divorcing couples to postpone the sale of their home, typically to prioritise the needs of their children. Under this type of order, the property remains jointly owned, but one party continues to live there – usually the parent who has primary care of the children.

The sale of the property is deferred until a specific event occurs, such as:

• The youngest child reaching 18 or completing full-time education.
• The primary resident remarrying or cohabiting.
• Both parties agreeing to sell the property.

Mesher Orders are often used to provide stability for children, allowing them to stay in the family home during their formative years. However, they do come with financial and practical implications. For example, both parties remain tied to the property, which can limit their ability to purchase new homes or secure independent mortgages.

Before agreeing to a Mesher Order, it’s important to carefully consider the long-term financial impact and discuss the arrangement with a legal or financial expert. While this option can offer stability in the short term, it may not always be the best solution depending on your unique circumstances.

Navigating ownership and finances 

How Is a House Divided In A Divorce?

When it comes to dividing the family home during a divorce, the best outcomes often arise from mutual agreement between the partners. Collaborating on how to divide jointly owned marital property like your home not only saves time and stress, but can also help you avoid the additional costs of going to court. Consulting a lawyer during this process is strongly recommended to make sure all agreements are legally binding and fair to both parties.

If an agreement cannot be reached, the court will step in to make a decision. Typically, courts start with a presumption of a 50:50 split of the property’s value. However, this can be adjusted based on various factors, including the presence of children and their housing needs. 

For instance:

• If the couple owns multiple properties, the court might divide these between the partners, balancing any differences with other assets.

• In cases involving young children, priority may be given to providing a stable home environment, which could affect how the house is divided.

What if you have a joint mortgage?

A joint mortgage can complicate matters during a divorce, but there are several ways to manage it; the key is to communicate openly with your mortgage lender before making any decisions. 

We’ll now run you through the most common options. Again, we remind you that before deciding on a course of action, it’s crucial to seek legal advice. 

1. Pay off the mortgage together
   If the mortgage is close to being paid off, it might make sense for both partners to continue making payments until it’s fully repaid. Once the house is sold, the profits can then be split.
   
2. Sell the house and pay off the mortgage
   Selling the property to clear the mortgage is another straightforward option. After paying off the loan, any remaining equity is divided between the partners. If the house is in negative equity (where the mortgage exceeds the property’s value), both parties will need to share the remaining debt.
   
3. Buy out the other partner’s share
   One partner may choose to buy out the other’s share of the house; to do so, they will need to demonstrate to the lender that they can afford the mortgage independently. A guarantor mortgage may also be an option, where a third party agrees to cover repayments if needed.
   
4. Transfer ownership with a smaller stake
   One partner can transfer part of their share in the property to the other. In this case, the smaller stakeholder may retain a claim to a percentage of the property’s value when it is eventually sold.
   
5. Court orders: Mesher or Martin orders
   In England and Wales, family courts can issue:
   • A Mesher Order, which allows one partner to remain in the home until a specific event, such as the children turning 18 or completing education.
   • A Martin Order, which allows one partner to live in the house for their lifetime or until they choose to move out, remarry, or die.

Both orders are designed to provide stability but depend on the other partner not requiring immediate access to funds from the property’s sale.

Can you sell a house if one partner refuses?

Selling a house when one partner refuses to cooperate can be a difficult and stressful process, but it’s not impossible. The first step is to explore all avenues for negotiation, as an amicable agreement is often faster and less expensive than legal action.

If negotiation fails, legal intervention may be necessary. In England and Wales, one partner can apply to the court for an Order for Sale under the Trusts of Land and Appointment of Trustees Act 1996. This allows the court to force the sale of the property if it’s deemed to be in the best interests of all parties.

Factors the court will consider include:

• The financial positions of both partners
• The presence of children and their need for stable housing
• Any other relevant circumstances that affect fairness

Keep in mind that applying for an Order for Sale can be time-consuming and costly, so it’s often seen as a last resort. Seeking legal advice early in the process can help you understand your rights and explore the best way to move forward.

Is it better to sell a house before divorcing?

Deciding whether to sell your house before or after a divorce is a deeply personal decision, and what’s “better” depends on your unique circumstances. That said, selling the house before the divorce is finalised can offer several advantages:

• Selling the house before divorce means you’ll have liquid cash to divide, which can eliminate the need for complex arrangements like buyouts or deferred sales.
  
• Divorce is emotionally challenging, and keeping the house can sometimes prolong the connection to past memories. Selling before finalising the divorce allows both parties to move forward more cleanly, potentially reducing emotional stress.
  
• Joint mortgages or shared property maintenance can strain finances during a divorce. Therefore, selling can free both parties from these ongoing obligations.
  
• It may be that selling before divorcing helps you achieve a better price for your home, due to the market being more favourable – waiting could risk market fluctuations.

However, selling beforehand isn’t always the best option. If children are involved, maintaining stability by keeping the house might take priority. Similarly, waiting to sell could allow for better market conditions or give one partner the time to prepare financially to buy out the other.

If you decide to sell before divorcing, working with professional cash house buyers can make the process smoother and less stressful.

Practical tips for selling a house in divorce

Whenever you choose to sell your house, whether that be before, during or after a separation, here are some pointers from our experts to guide you through the process:

Set realistic expectations: Selling a house in the context of a divorce often requires compromises. Go into the process with the understanding that the sale price, division, or timelines might not look exactly as you hoped.

Declutter and stage the property: Presenting the home in its best light can attract buyers more quickly, to speed up the whole process and allow you both move on. A well-staged home helps buyers envision themselves in the space and can potentially increase the sale price. Check out our blog for some tips on what you should and shouldn’t fix before selling a house.

Communicate openly: During a divorce or separation, emotions will be running high. Nonetheless, it’s crucial to maintain clear and respectful communication between you and your ex-partner. Aim to have open discussions on key decisions like pricing and the choice of selling method.

Consider a cash sale: If time and ease are your top priorities, selling to a cash house buyer can be the best solution. A buyer like Gaffsy can complete your sale in a matter of days, which is particularly helpful during the uncertainty of a divorce. We buy any house, no matter its condition, so there’s no need for costly repairs or staging.

Gaffsy can buy your house quickly before or after a divorce 

The traditional process of selling a home can be ​​complicated and stressful. You have to manage all aspects of the sale, must deal with estate agents and possibly surveyors, negotiate the price, finalise the sale, prepare the paperwork and much more. It can take a very long time, and it is normal for buyers to withdraw late in the process. 

If you are looking for a quick home sale at a guaranteed price, on a date of your choosing, get in touch with Gaffsy. We can offer you a fair and quick quote today. 

We buy any property regardless of location and condition and help to remove additional stress in the challenging circumstances of a divorce or separation.