Can I Sell My House When Getting Divorced?

Divorce can be a complicated time, especially if you are thinking of selling the family home. Read on to find out from an experienced divorce solicitor what your options are if you want to sell your house while getting divorced.

Selling your house when getting divorced depends on several things, including where you are in the divorce process. For example, if you have just separated and have not yet started to discuss how the assets might be divided, it might not be a good idea yet. Everyone’s circumstances are different. There are some practical considerations below, but individual legal advice from a specialist divorce solicitor is always recommended.

If both parties getting divorced (that is, the two former spouses) agree, the house can be sold at any time. Usually, both will be involved in the sale and will liaise with agents, conveyancing solicitors and otherwise.

There are limited occasions where a court may order what is called an ‘interim sale’. In other words, a sale of a property before a final decision has been made about how the assets are shared.

Two senior Judges recently disagreed on where the Court’s powers to order an interim sale are contained – a very good article on this was written in 2018 by Andrew Newbury for the Law Gazette. This article and the mentioned cases certainly bear reading for the family lawyer, but I will not go into them here.

Suffice to say that, despite the debate, the Family Court does have the power to make this order. The circumstances that it may be made, however, are rare and unfortunately rather unclear. The Court must consider:

1. Whether the property is of a ‘perishable’ nature; or, if not
2. If there is another ‘good reason’ for making the order

A perishable nature is, in my view, likely to mean something more than simply a declining housing market. The ‘good reason’ is the catch all – but very little guidance exists on what could qualify as a ‘good reason’.

Even if there is a clear and objective ‘good reason’, the Court has discretion – it might say that the parties should wait for a final determination of the asset division before making a decision about the house sale.

When selling what was previously the ‘marital home’ there are several things to think about including:

• Where will you go? Speaking to a financial adviser is usually sensible as an early step. This can give you an idea of how much mortgage you can raise. Can you tie in the sale with a purchase, and does the other party agree how much you will each receive?

• If you have agreed to sell or obtained an interim order but are not agreed on what will happen to the money, those funds might be held with a solicitor – potentially for some time. Do you have somewhere to stay, can you afford to rent? Do you need maintenance? Is it better for you (or your ex) to stay in the house short-term?

• If you agree with your ex to sell the house and divide the money, consideration should be given to getting that agreement drawn up, to prevent uncertainty and the risk of future financial claims.

• What to do with other assets – some people deal only with their home and are unaware that they are also entitled to a share of their ex’s pensions and other assets.

There are many factors to think about, and circumstances in which an early sale could be beneficial. Sometimes, it might not be – if there are children in the home, for example. For considered advice about selling your house whilst divorcing, we recommend speaking to a specialist divorce and family law solicitor.

We would always recommend asking a solicitor for assistance with divorce proceedings. If you’re not sure of the next steps to take, get in touch. We can work with you and discuss the best options for your situation.

Talk to us in confidence and find out where you stand. Our team of divorce and family law solicitors in Milton Keynes, Bicester, Watford and London can advise and guide you from the moment we start working with you. Get in touch – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.