One of the biggest concerns following separation or divorce is what happens to the family home. For many couples, it is their largest asset, and deciding whether it should be sold can become a major source of conflict.
If your former partner refuses to sell, you may be wondering whether you can force a sale. The answer is: sometimes, but it depends on your circumstances, whether you are married or unmarried, and what the court considers to be fair.
Here’s what you need to know.
Can I Force My Ex to Sell the Family Home?
There is no automatic right to make your former partner sell the family home simply because your relationship has ended.
Whether a sale can be forced depends on several factors, including:
- whether you were married or in a civil partnership;
- whether divorce proceedings are underway;
- who legally owns the property;
- whether there are children living in the home; and
- whether a court believes selling the property is appropriate.
The legal position is very different for married couples and unmarried couples.
If You Are Married or in a Civil Partnership
If you are divorcing, the family home forms part of the overall financial settlement.
This means the court has wide powers to decide what should happen to the property. A judge may order that:
- the home is sold immediately;
- one spouse buys out the other’s share;
- ownership is transferred to one party;
- the sale is postponed until a later date; or
- the property remains jointly owned for a period of time.
The court’s overriding aim is to reach a fair outcome, taking into account all of the family’s circumstances.
Will the Court Always Order a Sale?
Not necessarily.
Selling the home is only one of several options available to the court.
For example, if there are young children living in the property, the court may decide that they should remain in the home until they finish school or reach adulthood. In these situations, the sale may be delayed under what is commonly known as a Mesher Order.
This allows one parent and the children to remain in the property before it is eventually sold at a later date.
What If My Ex Refuses to Sell?
It is not uncommon for one person to refuse to cooperate, particularly if emotions are running high.
If negotiations break down, there are still legal options available.
These may include:
- negotiating through solicitors;
- attending mediation (where appropriate);
- applying to the Family Court as part of financial remedy proceedings; or
- asking the court to determine how the property should be dealt with.
If the court orders the property to be sold, both parties are expected to comply with that order.
What If We Were Never Married?
The position is more complicated for unmarried couples.
Unlike married couples, there is no legal principle that assets are divided according to what is fair.
Instead, disputes usually depend on:
- who is named on the legal title;
- whether each person has a beneficial interest in the property;
- any declaration of trust;
- financial contributions made towards the purchase; and
- the intentions of both parties.
In some cases, an application may be made under the Trusts of Land and Appointment of Trustees Act 1996 (often referred to as TOLATA) asking the court to decide whether the property should be sold.
Does It Matter Whose Name Is on the Deeds?
Yes, but it is not always decisive.
If the property is jointly owned, both owners generally have equal rights regarding its future unless there is evidence to the contrary.
If only one person’s name appears on the title deeds, the other partner may still have a financial interest depending on the circumstances.
For example, they may have contributed significantly towards the purchase price, mortgage repayments or improvements to the property.
Obtaining legal advice is important before assuming that ownership is determined solely by whose name appears on the Land Registry title.
What Happens If Children Live in the Home?
The welfare of any children is a significant consideration in many family law cases.
Where married couples are involved, the court often seeks to minimise disruption to children’s lives.
This can mean delaying a sale until:
- the youngest child reaches 18;
- they complete secondary education; or
- another specified event occurs.
Every family’s circumstances are different, and there is no automatic rule.
Can My Ex Stay in the House Forever?
Usually not.
Even where a sale is postponed, this is often only temporary.
The court will usually specify when the property should eventually be sold and how the sale proceeds will be divided.
What If One Person Wants to Buy the Other Out?
In many cases, selling the property on the open market is not the only solution.
If one party can obtain sufficient mortgage finance, they may be able to purchase the other’s share.
This can allow children to remain in the family home while giving the other person their share of the equity.
A valuation of the property is normally obtained before negotiations take place.
Is Going to Court the Only Option?
No.
Many disputes over the family home are resolved without a final court hearing.
Solicitor-led negotiations, mediation and collaborative law can often help couples reach an agreement more quickly and at a lower cost than contested litigation.
However, where agreement cannot be reached, the court has powers to make legally binding decisions.
How Can Rose & Rose Help?
Disagreements about the family home can be one of the most stressful aspects of separation or divorce. Whether you are seeking a sale, wishing to remain in the property, or trying to protect your financial interests, obtaining early legal advice can make a significant difference.
Our experienced family law solicitors advise clients across England and Wales on divorce, financial remedy proceedings, property disputes, and arrangements involving the family home. We provide clear, practical advice tailored to your individual circumstances and work to achieve the best possible outcome, whether through negotiation or court proceedings.
Speak to a member of our Family Law Team below.
