How to go about selling a house after divorce

The breakdown of a relationship is an emotional and stressful time, even more so if there are children involved. Dealing with the practicalities of divorce or separation, such as what to do with a shared home, can be complicated – especially when most people are keen to move on as quickly as possible.

As well as the financial decisions to be made, it’s important to consider the legal implications, especially since many married couples co-own their property under a “joint tenancy”. This is a legally binding contract that confers sole ownership rights on the surviving spouse if the other dies. But what happens if you decide to divorce?

We’ve put together this guide to help you through the difficult time of selling your home after a divorce, answering key questions on severing joint tenancy, selling the home before the divorce is finalised and how to sell your home after the divorce.

Who gets the house in a divorce?

A house isn’t automatically split 50/50 between a divorcing couple, even if it is jointly owned. The courts will take a range of factors into consideration when deciding how the property should be shared and who is allowed to remain, such as:

• Are there any children under 18 and who will they live with?
• Your individual incomes and financial commitments after the divorce
• What financial contributions and assets each party made to the marriage

The courts will always favour the interests of any children (aged under 18) involved and will seek to maintain as much stability as possible for them. An arrangement that requires the children to change schools or leave friends behind will be less likely to succeed than one that provides minimal disruption.

If possible, it’s much better to reach an amicable agreement about living arrangements and how to divide your assets. This will save both parties time, money and stress. If there are children involved, the more civil and hassle-free the process is, the easier it will be for them to adjust to the new arrangements.

Do I have to sell the house after a divorce?

No, it isn’t necessary to sell your family home after divorce. When deciding what to do with the family home, selling is one route, but there are other common options chosen by divorcing couples:

Sell the house and divide the proceeds

Both parties move out and start again elsewhere using their share of the proceeds. How much each person gets can be agreed amicably or with professional advice and, ultimately, by the family court system if necessary.

One partner buys the other out

If one of you has the means to pay the other their share of the equity in the property (or whatever sum is deemed reasonable), ownership can be transferred to the remaining occupant. It’s important to be aware that the partner who stays in the home, as well as buying out their former spouse, must also have the means to maintain the property on their own. This makes this a less common option as few individuals can afford to  cover mortgage payments and bills for a family home by themselves.

Delay the sale

The separating couple may decide to sell the property when a certain event has taken place, for example, after the youngest child turns 18. The courts can also enforce such an agreement via a “Mesher Order”. Alternatively, a  “Martin Order” also delays the sale, but it allows one partner to remain in the home for life or until they remarry.

Transfer an interest in the home

One partner remains in the home and the other moves out, but they retain a financial interest in the property so that when it is eventually sold, they will be entitled to a share of the proceeds.

If you can’t reach an agreement with your ex-partner, the family court will reach a decision. They have the authority to enforce the sale of a property in certain circumstances.

FAQs for selling a house after a divorce

What are your options for sharing a family home after divorce?

There are many options for selling the family home after divorce without having to sell the property right away, but sometimes, one person can be reluctant to take that next step.

If this happens, there are other options, such as renting out the property and sharing the income  between both parties. Another alternative to selling the property is switching from a joint tenancy to a common tenancy, allowing for more flexible ownership arrangements, which can bring its own complications.

What is a joint tenancy?

Joint tenants have equal rights to the whole property, regardless of who paid the deposit and how much you’ve each contributed to the mortgage. If one spouse dies, ownership automatically passes to the surviving spouse — this means you cannot pass on ownership of the property in a will if you have a joint tenancy.

Can I switch to a tenancy in common?

Couples who are divorcing or dissolving a civil partnership can sever their joint tenancy by changing their property ownership status to a “tenancy in common”. This means that:

• Each partner can own different shares of the property
• Ownership of the property will not automatically pass to your ex-partner if you die
• You can include your share of the property in your will and choose a beneficiary

If a separated couple doesn’t make this change and one of them dies, ownership of the property will automatically pass to the remaining spouse. There is no fee for switching to a tenancy in common, you just need to notify the Land Registry of the change by completing the necessary forms.

Can I sever a joint tenancy without my ex-partner’s consent?

In England, Wales and Scotland, you’re entitled to make this change without your partner’s consent. It’s generally an easier and less stressful process if both parties agree on the change of ownership status, but there isn’t any legal requirement to obtain your ex-partner’s consent.

If it’s not possible to reach an agreement, the person who wants to switch to a tenancy in common  can have a solicitor serve a written notice of change (a notice of severance) on the other owner. They’ll then complete the appropriate form (a SEV) and submit this, along with any necessary supporting documents to HM Land Registry’s Citizen Centre.

What are the potential issues with a tenancy in common?

A tenancy in common will stop the property from automatically passing to your ex-partner if you die, but it raises concerns over what will happen to your share if you pass away. Under a tenancy in common, you are entitled to leave your share of the property to a beneficiary of your choice. However, this could be stressful and problematic for the third-party beneficiary if your ex-partner is still living in the property and doesn’t want to sell.

Many people who make the change from a joint tenancy to a tenancy in common work towards one person buying the other out over time. Separating couples with children often name their offspring as beneficiaries to ensure that the home stays in the family; this is also a tax-efficient way of leaving the whole property to the children.

Are there any tax implications when transferring or selling property in UK?

When it comes to transferring property due to divorce then:

· Transfers between spouses during separation or via court order are Capital Gains Tax (CGT) neutral (“no gain/no loss”).

· You have up to three years after separation to transfer without CGT.

· Transfers executed under a court order are exempt from Stamp Duty Land Tax (SDLT)

Can I sell my house before the divorce?

If you’re on good terms with your ex-partner, selling before the divorce is finalised can give you a head start in reaching an agreement about your arrangements post-divorce; if you sell the family home you could have the finances in place to buy your own property.

All of this will help everyone involved move on from the stress and emotions of the separation as quickly as possible.

What are your legal rights to a house in a divorce with children?

If you and your partner cannot agree on what to do with a family home, it’s important to know what rights you have, and what the courts can do.

A Financial Remedy Order, otherwise known as an Ancillary Relief Order, can be issued by a family court to secure a lump sum payment or ownership of a property. However, the courts will prioritise the welfare of any children under the age of 18. If you have left the property and your partner remains there with the children, provided they can afford to stay, most legal bodies will not force them to move out.

The courts may issue a Mesher Order, which defers the sale of a family home for a fixed period or until a specific event occurs — for example, all children residing in the property turning 18.

What happens to a joint mortgage when you divorce?

Regardless of who lives in the family home, all parties named on the mortgage will be liable to continue making payments. If you or your partner plan to remain in the family home after a divorce or civil partnership dissolution is final, speak to the lender about transferring the mortgage into one name. This will allow the departing spouse to secure finance for a new property and let the remaining partner move on without any reliance on their ex for financial contributions to the mortgage.

If you sell the home, the joint mortgage can be repaid in full with the proceeds, allowing both parties a clean break.

How is the property value determined?

If you are in dispute with your partner, this can get tricky.  The most common methods are to get several estate agents out to value the property, or to get a RICS-certified surveyor to complete a survey of the property. 

If the value is being contested, courts may appoint a joint expert surveyor.

What legal documents are needed for property decisions during divorce?

The typical documents you’ll need are:

· Divorce decree or financial settlement agreement.

· Transfer documents (e.g., Form TR1 in the UK) for equity changes.

· Consent or court orders (e.g., Mesher order or Martin order to delay sale).

· Mortgage lender approvals, particularly when refinancing or transferring ownership

Why would you keep a shared property after separation?

Many separating couples choose to sell their marital home and make a fresh start when a relationship comes to an end – but this isn’t always either possible or indeed wanted. Potential reasons for keeping a shared property after divorce include:

• Maintaining stability for children
• Keeping a property that delivers an income, for example, a family home with an annexe used as a holiday let
• A slow property market that could result in a low sale price
• A preference to wait for the divorce to be finalised before selling
• The home has been adapted to accommodate a disability of one spouse or another family member

Can I be forced to sell a jointly owned house?

In some circumstances, yes, you can be compelled to sell a jointly owned property, but it’s usually a last resort. If you and your ex-partner can’t agree on what to do with the home, the family courts have the authority to enforce a sale, particularly when all other options have been exhausted.

Where possible, it is always preferable to reach an amicable agreement and avoid court intervention, as enforced sales can be costly, stressful and time-consuming.

Can you divorce without selling the house?

Yes, you absolutely can divorce without selling the house and many couples choose to do so. Selling the family home is just one of several possible outcomes when a relationship ends. Depending on your finances, living arrangements and long-term plans, there are a number of alternatives that suit keeping the property after divorce.

One common option is for one partner to buy the other out, transferring full ownership to the person who wants to stay – this works best when that partner can afford both the buy-out sum and the ongoing mortgage costs. Another option is to delay the sale, either through a voluntary agreement or a court-issued Mesher Order, particularly when children are involved and stability is a priority.

You could also choose to retain joint ownership for the time being, either by continuing as co-owners or by switching to a tenancy in common, which gives each partner their own defined share of the property. Some separating couples even decide to rent the property out, using the rental income to support both parties while they establish their new arrangements.

How to sell your home quickly after a divorce

If you agree to sell the family home — or a court orders you to do so — there are several options available to you.

You could sell on the open market via an estate agent. However, the traditional route of house selling takes an average of 4.2 months — from the first day of marketing to completion. This process is ideal for couples who aren’t in a rush or are going through the divorce or separation proceeding amicably. However, if you’re in a rush to sell up and move on, you might want to explore alternative options:

• Traditional Auction — the bidding must meet the property’s reserved price to sell. If an acceptable offer is received, the buyer must complete the sale within 28 days.
• Modern Auction —  this offers a slightly more flexible option for the buyer. The auction is carried out online. When a successful bid is made the buyer pays a non-refundable reservation fee — up to 5% of the purchase price — and must then exchange contracts within 28 days. They have a further 28 days to complete the sale.
• Quick House Sale Company — this is the only way to secure a guaranteed sale. A reputable quick house sale company will have the funds ready to buy your property in a matter of weeks. House Buyer Bureau can buy any type of property in any condition in as little as seven days.

If you’re looking for a quick, hassle-free house sale, get in touch with our team of house cash buyers today. We will give you a fair price from the start and work in line with your timetable.