Divorce and Property: What to Expect

divorce and property

The end of a relationship is the most common reason for seeking a quick house sale. But what are your rights to property after a divorce? What if your ex-partner refuses to sell up and move on? Can you force the sale of a jointly owned property

We’ll answer all these questions and more in our guide to divorce and property for 2021.

How Is the Property Divided in Divorce?

Regardless of who owns the property, both parties in a marriage are entitled to a share of the property. Even if your home is jointly owned, it may not necessarily be divided 50/50 when you divorce. 

If you cannot reach an agreement amicably, the courts will decide on how the property should be divided based on a wide range of factors, such as:

  • The presence of children under 18
  • The financial needs of each person
  • The income of each party
  • The financial contributions each spouse made to the marriage
  • If either party has a disability
  • The value of assets before, during and after marriage, e.g. pensions
  • The age of each spouse
  • The length of the marriage
  • The overall needs of each party.

The courts will always prioritise the needs of any children above those of the divorcing partners. 

Who Has to Leave the House in a Divorce?

Until the divorce is finalised, both parties have the same legal rights to the home under the Family Law Act 1996:

  • The right to stay in your home (unless a court order prevents you from doing so).
  • The right to seek court permission to return to your home (if you have moved out).
  • The right to be informed of any repossession action taken by the mortgage lender.
  • The right to pay the mortgage (if your ex stops making payments, for example).
  • The right to attend any mortgage possession proceedings taken out by the lender.

If only one of you owns the property, the other can apply to HM Land Registry for “home rights” unless the house is jointly owned with another party and the proceeds would need to be shared if it were sold. Home rights provide protection until the divorce is final and will be overridden by any agreement made regarding the division of the property as part of the divorce proceedings. 

Can I Be Forced to Sell a Jointly Owned House?

Many married couples are joint tenants or “beneficial joint tenants” with equal rights to the marital home.

If one party wants to sell and the other doesn’t, the court can issue an order — a “Property Adjustment Order” — for the house to be put on the market as part of the divorce settlement. There may be certain conditions attached; for example, the order to sell may only apply when the youngest resident child reaches the age of 18. The court is less likely to prevent the marital home from being sold if there are no children. 

Can You Divorce Without Selling the House?

Yes! Unless the divorce settlement includes a court order to put the property on the market. Alternatives to selling include:

  • Maintain the Joint Tenancy. Why would you keep a shared property after separation? There could be any number of reasons to maintain the status quo post-divorce if this is financially viable, for example, providing stability for young children, delaying selling until a slow property market improves or because the house has been adapted to accommodate the needs of a disabled spouse or family member. If the divorce is amicable and the departing spouse can afford to maintain payments on the property as well as buying or renting a separate residence, this can be a great option for separating couples with children. 
  • One Partner Buys the Other Out. If one spouse wishes to remain in the property and they have the means to pay the other for their share — however much they agree this should be — ownership can be transferred to the remaining spouse.  
  • Switch to a Tenancy in Common. By changing a joint tenancy to a tenancy in common, each partner can own different shares in the property and specify which beneficiaries they should go to in their will. With a joint tenancy, if one party dies, ownership automatically passes to the surviving spouse.
  • Agree to a Delayed Sale. The divorcing couple may reach an agreement to delay the sale, for example, until the market improves or until the youngest child reaches a certain age. The courts can also enforce this with a Mesher Order. A Martin Order allows the named party to remain in the home for life or until they remarry, at which point the house must be sold and the proceeds shared. 
  • Transfer an Interest in the Home. This is similar to a delayed sale, in that one person moves out and retains an interest in the property, which they cash in whenever the house is sold.

How to Sell Your House Fast after a Divorce

When a relationship breaks down, it’s upsetting and stressful for everyone involved, which is why most people favour a quick house sale that allows them to move on.

Whether you agree amicably to sell the marital home or a court orders you to do so, there are several alternatives to an on-market sale (which typically takes around four to five months in the UK). 

  • Selling at Auction. At a traditional auction, buyers exchange on the day of auction and must complete the sale within 28 days. Modern auctions allow buyers 28 days to exchange and a further 28 to complete. Either option is likely to be quicker than selling on the open market, but auctions often attract bargain-hunters and investors who will try to drive the price down. 
  • Selling to a Private Buyer. If you’re lucky enough to know someone who wants to buy your house, such as a friend or family member, this can speed up the process. There will be no need to market the property, host viewings or wait until an offer comes your way. However, you will still have to go through the lengthy house sale process, which takes months.
  • Selling to a Quick House Sale Company. A genuine cash house buying company like House Buyer Bureau can turn your house sale around in as little as 7-days. You can avoid the emotional turmoil of having strangers traipse through your former family home and there are no estate agent or solicitor’s fees to pay.

Would you like to find out more about selling to House Buyer Bureau? Do you have questions, or are you ready to receive a free cash offer? We can help you move on and make a fresh start — fast! Contact our friendly team today

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