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When you are going through a divorce, you must consider how to divide your shared assets including your home, if you own one.
However, selling your home during a divorce is not always straightforward, especially if one of the spouses refuses to sell.
Selling a home can be emotionally and legally challenging, so you must understand your options when a sale is being denied or obstructed.
Divorce can be an expensive process and resolving issues outside of court through Alternative Dispute Resolution (ADR) should be your first step when a dispute occurs.
Both parties are expected to consider ADR before progressing with divorce proceedings and it often provides a more cost-effective way to reach a financial settlement.
Solicitor led negotiations is a common form of ADR. An experienced solicitor will be able to provide advice as to how the Courts would likely deal with a dispute regarding sale of a home, and apply that experience to help achieve an out of Court settlement. Mediation is also a common form of ADR and can allow you to work through your issues around the division of assets with the support of an impartial mediator. Solicitors and Mediators can work in parallel with one another.
If a more formal decision is required, arbitration may also be an option, which would involve you presenting your evidence to an independent arbitrator who makes a binding decision.
Before entering negotiations or taking legal action, you must understand how your family home is owned.
In England and Wales, jointly owned property is usually held in joint tenancy or tenancy in common and this can affect your rights during a divorce.
Joint tenancy is a common arrangement where both spouses own the whole property together, rather than in shares.
Joint tenancy includes the right of survivorship, which means if one owner dies, the property automatically passes to the other, even if the Will states otherwise.
During a divorce, one party may choose to sever the joint tenancy and convert ownership into a tenancy in common and remove the automatic inheritance right.
Tenancy in common is when each owner holds a distinct share of the property, which may be equal or unequal.
Where shares are not equal, this is usually recorded in a declaration of trust. Each party can leave their share to someone else in their Will and one owner does not automatically inherit the other’s share.
Knowing which structure applies to you is crucial to help inform negotiations and protect your rights during divorce proceedings.
ADR can reduce legal fees and court costs but sometimes a consent order is required to put clear arrangements in place regarding your children or finances.
This is a legally binding document approved by the court and agreed upon by both parties that sets out how assets, such as the family home, are divided.
A consent order can be made during divorce proceedings or after the final order has been granted. It can help prevent further claims or disputes. An experienced solicitor can help you draft and secure a Court Order which reflects and formalises your financial settlement.
If your ex-partner is refusing to comply with an existing court order that requires the property to be sold, then legal enforcement may be required.
Before applying for a court order, you should consider mediation to attempt to come to a fair and reasonable agreement.
However, this is not always appropriate if your ex is acting unreasonably or obstructing the sale.
Obstruction can often include interference with estate agents, refusal to allow viewings, discouraging buyers or threatening behaviour such as changing locks.
It is crucial to keep clear evidence of any incidents or messages in case the situation develops further or your ex-partner disputes your order.
The court holds the power when it comes to the sale and they may enforce the order or require your ex to vacate the property.
The court may remove your ex’s involvement entirely and grant you conduct of sale so that you can manage the process independently.
In extreme situations, the court can sign sale documents on behalf of a non-cooperative party or issue injunctions to prevent further obstruction.
If your ex’s behaviour has caused financial loss, such as a delayed sale or a reduced sale price, the court may revisit parts of the original financial order.
Failing to comply with a court order can amount to contempt of court and seeking legal advice early on can help you take the right steps.
Disputes over property sales can be overwhelming and we are here to advise you on your rights and how to support your claim when a dispute arises.
Our professional team can support you when you are applying to court to enforce or vary existing orders and help prevent further delays in your divorce.
If you need advice on dividing your assets during a divorce or disputes during a divorce, contact our specialist family lawyers today for tailored advice and guidance.
Director – Head of Family Department
I qualified as a Solicitor in 2006 and now specialise in divorce, financial settlements, childcare arrangements and Pre Nuptial Agreements. I have many years’ experience as a private family lawyer having worked with two other local firms before returning to Mander Hadley, where I first undertook work experience during my university studies.
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