Ending your marriage is incredibly stressful, and you will likely feel additional pressure when thinking about how to sell your home during the divorce process. There are, of course, a number of practical considerations that can become overwhelming, such as how to make mortgage payments on your own or what the best solution for your children is.
Selling your house during a divorce can also be extremely emotional, even if you know it is the right thing to do. Understanding how it works and everything you need to know can make the process less daunting.
Can I sell my house during a divorce?
Yes, it is very common to sell the matrimonial home during a divorce. The money from this sale can then be divided as part of the financial settlement.
If you have multiple properties, you can sell them during the process of ending your marriage, but carefully. Typically, the court is more willing for a second home to be sold to release liquidity as this isn’t the primary residence.
However, we recommend that you consider the legal and tax rules before instructing an estate agent to avoid any costly mistakes.
Discover more about what you need to know about property and divorce in our latest guide.
How to sell a house during a divorce: Steps to follow
1) Understand who legally owns the home
Before getting your house ready to be sold, it’s essential that you and your ex understand your legal standing in relation to the property.
For example, the property could be held as Joint Tenants (where you both equally own the property) or Tenants in Common (where you both own specific shares – this is outlined in your Declaration of Trust or your legal documentation for the property that you’ll have got from the conveyancer).
Solicitor’s tip: If the home is just in one party’s name, the other spouse has a legal right to occupy the property during the marriage. However, this is not automatically recognised unless you have a Home Rights Notice registered with HM Land Registry – we recommend doing this as soon as possible. This legally stops the spouse who owns the home from selling or remortgaging it without their knowledge.
2) Get a professional valuation
The value of your home is essential for the financial disclosure, like the Form E, of your divorce settlement.
It’s important to get an unbiased valuation of your home, as if you sell before your financial settlement has been reached, it has to be sold for fair market value. With this in mind, if one party sells the home for a lower value, for example, in a more casual arrangement with a family member or friend, the court can order them to compensate the other spouse for the deficit.
3) Agree on when to sell
You can either sell your home before or after your financial divorce settlement is legally finalised.
Before the financial order: If you choose to put your home on the market before your financial settlement has been completed, it releases equity, which allows both spouses to understand how much capital is available.
After the financial order: The sale of the house will take place after the judge approves your consent order. This means that the exact division of money is already legally binding.
Zanariah Webster, Senior Associate at our family law office in London, says:
“It is common for parties to have joint conduct of a sale of a property, meaning that the sales price has to be agreed and both parties are copied into communications with the estate agent and conveyancers.
“If one party reneges on the sale of the property, can’t agree to a sales price or deliberately delays the sale, it is possible to restore the matter to the court and apply to enforce the consent order.”
4) Get a court-approved consent order
Even if you and your ex-partner see eye to eye on how to divide the money from your house sale, an agreement between yourselves isn’t legally binding under UK law – even if it is a written agreement.
Drafting a consent order ensures it is legally binding. The consent order must be approved by a judge, which then creates a clean break. It is best practice to instruct an expert family solicitor to draft the consent order as they will be able to tell you whether it is likely to be approved by the judge.
Is it necessary to sell my home when my marriage ends?
It isn’t always necessary to sell your house when getting divorced. However, sometimes there aren’t enough assets to divide to create a fair financial settlement. Therefore, the family home may need to be sold to divide the equity and balance the finances.
You can try to explore different methods for keeping your home, but we always tell our clients to prepare to sell the house if there’s no other way to reach a fair settlement.
What alternatives are there to selling the house in a divorce?
If selling the matrimonial home isn’t the right decision for your case, for example, because you have young children who would be disrupted by this, you may look at other options to keep the family home.
- Transfer of equity: This is when one party buys out the other’s share in the home and single-handedly takes on the mortgage.
- Mesher order: This is when the court orders the sale of the house to be deferred until a ‘trigger’ – such as when the youngest child turns 18. Until that moment, one party lives in the home with the children.
- Martin order: This is similar to a Mesher order, but the sale is deferred even longer. One spouse can live there for life or until they marry again.
To find out more about the difference between a Mesher and Martin order, check out our latest advice.
What should you consider when selling a house when ending a marriage?
When ending a marriage, you have so much to consider. You may want to sell your house quickly so it’s one less thing to worry about, but you should consider how this will impact your financial future.
- Your ability to buy as a sole owner: You should talk to your mortgage lender as soon as you know you and your spouse are separating. This will help you to understand if you can afford to pay for your home by yourself or if selling is the right option.
- How you and your ex will communicate: If you’re not divorcing amicably, communication between spouses can be tricky. However, when selling a house, there needs to be discussions regarding appointing estate agents or getting the house ready. Try to keep discussions limited to the practicalities the home, but if this isn’t happening, you may consider a mediator.
- Your matrimonial home rights: Even if your home is owned by your ex, you have legal rights to live there as part of the Family Law Act 1996. Make sure to register with the Land Registry to prevent your spouse from selling or mortgaging the home without your knowledge.
- What is best for the children: If you have children under 18, the court’s priority will be ensuring that the children have a safe place to live. This will impact whether the house can be sold, as there must be an adequate alternative in place.
- How bills and mortgage payments will be dealt with in the interim: The bills and mortgage still need to be paid during the process of getting divorced, so you and your ex need to agree on how this will be handled. If they are refusing to engage, there are court orders that can be made to force mortgage payments to be made, but you will need to speak to a family lawyer.
What happens with tax when selling a house amid divorce?
If both of you continue to live in the house as your primary residence until it is sold, you typically won’t have to pay Capital Gains Tax (CGT).
However, when you separate, property tax isn’t always straightforward. You may hear or know of divorcing couples that didn’t pay tax on a house sale, but the reality depends on:
- Who lives in the property
- How long you’ve been apart
- What the court says
If one person moves out, they will have a 9-month grace period where their share of the property remains tax-free. If the house takes longer than 9 months to sell, the departing partner could face CGT on any profit built up after their grace period ends. Depending on your income, this tax is charged at either 18% or 24%.
Current tax rules allow you to protect your tax-free status and avoid paying CGT after moving out as long as your situation meets one of these criteria:
- The three-year rule: The transfer of the property happens within three tax years from the end of the tax year in which you permanently separated.
- A court order: The transfer or open-market sale happens under a court-approved consent order, which grants an unlimited time extension to the tax relief.
- A deferred sale: The arrangement is set up as a deferred sale (such as a Mesher Order), where the spouse leaving the home keeps a percentage of the property, but the ex-partner stays in the home as their primary residence.
Solicitor’s tip: We recommend speaking to an expert, as your specific circumstances could change things. For example, if you own more than one property.
Do you pay stamp duty (SDLT) when buying out your ex during a divorce?
If the plan is for one of you to stay in the house permanently by buying the other person out (also known as Transfer of Equity), you generally do not have to pay Stamp Duty. To qualify for this exemption, the transfer must be a formal part of your divorce proceedings, backed by a court order, or a legal separation agreement.
What happens if my ex is forcing me to sell our home?
If your home is jointly owned, one partner cannot force the sale of the house. You must both agree to sell it. If you cannot reach an agreement, the court will need to force an order of sale.
If children are involved, the court will prioritise what is best for them over the sale of the home.
What happens if one party refuses to cooperate with the house sale?
If the court has ordered the sale of the matrimonial home and one partner will not comply, the court can take legal steps to ensure the sale goes ahead, such as:
- An injunction to prevent the spouse from stopping viewings
- A power of attorney for the willing partner to control the sale
- Evicting the problematic spouse (usually a last resort)
What happens to the joint mortgage if I don’t sell my house?
Under UK law, a joint mortgage is viewed by the bank as a single entity. The full monthly payment is expected, regardless of who is living there. Therefore, if you decide not to sell the home, a joint mortgage doesn’t just automatically go to the person who gets the house as part of the divorce.
You typically have three options:
- Buying out your spouse as a transfer of equity
- Maintaining the joint mortgage even if one spouse has moved out – deciding on how the bill is split
- A court-ordered deferred sale (such as a Mesher or Martin Order)
Find out more about what happens to the joint mortgage in divorce in our latest advice.
Can I buy a new house before my divorce is final?
Technically, yes, you can legally buy a new home before your divorce is complete. However, it isn’t always advised to make such a big purchase before your financial agreement is in place, as your settlement isn’t final and could change.
If you need legal advice about selling a house in a divorce or buying a new property when your marriage is ending, our experts are here to help. Reach out to our team today or call 0330 159 9819 to find out more.
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