Selling after divorce is difficult.
Negotiations over it can be frustrating and contentious.
So, can one ex-partner force the other to sell a house?
And what happens if an ex ignores a court order to sell?
What is a court order to sell a house?
In the UK, a court order to sell a house is a legal mandate for ensuring the resolution and distribution of a property’s proceeds.
They are usually issued after divorces, inheritance disputes, or foreclosures.
A court is likely to order the sale of a house when:
- A bank has stopped receiving mortgage payments
- One partner cannot afford or has stopped paying the mortgage
- The joint owners have split up and cannot agree on whether to sell the house
- A trustee in bankruptcy brings forward the case
- A creditor is bringing forward a ‘charging order’.
How do courts arrive at decisions?
Courts hold a hearings to determine whether a sale can be forced.
Any opposing parties can state their case about why this should not happen. For example, if they have:
- A clear plan to meet their mortgage repayments
- Young children living in the house
- Disagreement on how the home will be divided during divorce.
If the order for sale is granted, the court can make an order giving a date for possession.
But the opposers can ask for certain stipulations. For example, the house is only sold after a specific date (e.g. when a child turns 18).
How do I apply for a court order to sell a house?
You first need to complete an N208 form. This orders the possession and sale of a house.
It is submitted to the nearest County Court hearing centre. And it should include all the following details:
- Evidence of your financial interest in the property (e.g. a copy of the mortgage or the property’s Title Deeds)
- How much debt is owed on the house
- Details of any previous charges on the property
- An accurate valuation of the property
- A clear outline of who owns the property and what the circumstances are.
Once this document is submitted, you will usually receive a hearing date.
All interested parties can attend and make their case, after which the court will decide.
As with any legal case, you should get expert legal guidance on the relevant processes.
What happens if my ex ignores a court order to sell a house?
If your ex refuses to comply with an order to sell your house, the court can still force the sale to go through.
The ex may then be in ‘Contempt of Court’ under the corresponding 1981 Act. It may result in penalties or even prison time.
Remember: the above scenario assumes that both ex-partners with a joint mortgage own 50% of the house.
On the other hand, if you and your ex-partner are tenants in common, the circumstances are different.
Regardless of the ownership ratio, if one party wants out, the other must allow it. This can be done by:
- A sale of the whole property and all owners cashing out
- One of the other owners buying out the share
- A non-owner buying that share.
Can I force my ex to sell the house?
In short: it depends.
If you own the house through a joint mortgage you can only force the sale if a court approves. However, your ex-partner might be able to provide a legitimate reason for it not to happen.
If you own the house as tenants in common, you can often still force the sale if your ex cannot buy out your mortgage share.
Can I sell my share of the property to someone else?
Yes, there are a couple of ways you can sell your share of a property (as Tenants in Common) to someone else. This is sometimes known as a ‘partial sale’ or ‘fractional ownership’.
Your deed of trust should explain how your ownership is split. And what happens if one person wants to sell their shares.
In most cases, someone can sell their house shares without the other owner’s permission.
(You should get a legal expert who can guide you through the process of selling your share.)
Will court order a house sale if I have sole custody and children living with me?
With any court hearing on a forced house sale, you can make your case about why it should not be allowed.
It is common for the sale to be delayed until a certain event occurs.
If you have sole custody of the children, then the court is even more likely to rule in your favour.
What happens if the divorce isn’t finalised?
If your divorce isn’t finalised, then both you and your ex-partner have the right to remain in the house.
Leaving the home before divorce can create problems. But staying can create an uncomfortable situation. And this situation may lead to one party trying to force a sale.
If this happens, the other party should get legal help and seek a Notice of Home Right.
This prevents one partner from selling while still married. It applies even if the property and mortgage are in their name.
Can I buy my ex-partner out of the mortgage?
Yes, you can buy your ex-partner out of the mortgage if you have the funds to do so.
They may contend this decision, in which case it might need to be heard in court. (For example, they may want to buy you out instead.)
You could raise this capital in several ways, such as:
- By requesting a further advance from your current lender
- Taking out a second-charge loan from a different lender.
Speak to a solicitor for guidance. This ensures you follow all the correct procedures when buying your ex-partner out of a mortgage.
Who will buy the house if a sale is forced?
If a court order requires you to sell, it will typically be done on the open market through an estate agent.
In exceptional circumstances, a cash-buying company or auction house may buy the property.
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