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When a relationship, marriage or civil partnership comes to an end, it’s very normal to feel stressed or upset to some degree, no matter how hard you try to keep things amicable.
It can become even more difficult when disputes arise surrounding the division of assets and property. For example – when you divorce, what happens to the house?
This is more than just a practical question. Often, property that has been cohabited by both people in a relationship is seen as “home” by both parties, and discussions about what is to be done with it following a breakup can get intense and emotional.
So – what happens if your ex refuses to sell the house?
More specifically: what do you do if your ex spouse or civil partner refuses to sign the required documents to sell your property?
This can feel like a big and complex issue – particularly when you are facing a range of other sensitive and daunting tasks related to the end of a relationship.
In this article, we explore your options during a divorce: what happens to your house if you have joint ownership when you separate? Can you apply to a court to force a sale when your ex partner refuses? All of these questions and more are addressed clearly below.
The initial answer to this question depends on the nature of your ownership of the house.
It may be that only one of you is named on the title deed. In this case, the individual who is named is the “entitled” spouse or civil partner, and the person who is not named is the “non-entitled” spouse or civil partner.
If you are an entitled spouse or civil partner, you may be able to take certain actions in order to sell your property – whether your ex wishes to do so or not.
However, the non-entitled spouse or civil partner still has what are called “occupancy rights”, which means that they cannot be forced to leave the property without a court order before the married or civil partnership is legally dissolved.
“Occupancy rights” may also be referred to as “home rights”. By claiming these rights, the tenant ensures that they will be permitted to stay in the property, and that it cannot be sold, up until the date upon which their separation or divorce is finalised.
They may even be permitted to stay longer through the application of a “continuation order”.
It is worth noting that once you and your partner have separated, as a non-entitled spouse or civil partner, your occupancy rights will only last for up to two years of continuous “non-cohabitation”. Beyond this point, you will no longer have these rights.
If you are both named on the deed, your options will depend on whether you are “tenants in common” or “joint tenants”.
We’ll explain these terms and their implications in more detail in the next two sections.
As tenants in common, you may own equal shares in the property, or one of you may own a larger percentage than the other.
The way in which the property is divided between you will have been determined upon purchase, so you may need to look back over old paperwork to find out the finer details of the arrangement.
For example, you may have decided to split ownership depending on your individual earnings, or the contributions – financial or otherwise – you have each made towards the upkeep of the home and your relationship.
As tenants in common, if you wish to sell the property, you might agree that one party will “buy out” the other, taking over the home and removing the other name from the deeds.
However, this does not answer the question of how to sell a house when one owner refuses.
If you are in this position, you may be able to force a sale. To do this, you’ll need to apply to the County Court for an Order for Sale CCJ (County Court Judgement). We’ll explain more about this process later on.
This arrangement means that both parties own the entire property together. This form of ownership can apply whether you are married, in a civil partnership or cohabiting.
In a joint tenancy, if you are separating and trying to decide what to do with your home, the first step should be to try to come to an agreement on whether or not you should sell the property – and how to do so.
Should you be unable to make a joint decision independently, the next step should be to arrange mediation. If a decision is not reached after this, you may need to “sever” your joint tenancy.
This will then render you tenants in common, and the relevant steps (explained above) can then be undertaken.
You do not need your ex-partner’s consent to change from a joint tenancy to tenants in common. However, if they refuse to cooperate in this process, you will need to serve a notice of severance of joint tenancy. You can find out more about how to do this via the gov.uk website.
If you and your partner have failed to come to an agreement regarding the sale of your property, you’ve already tried mediation and you are registered on the title deeds as tenants in common, it’s likely that you will need to apply to court to force a sale.
To do this, you will need to request a court order called an “Order for Sale”.
You can arrange an Order for Sale through your solicitor, but it is also possible to apply to the County Court yourself. However, we highly recommend seeking legal advice before committing to any process.
Once the order for sale has been approved, it will then be used as part of a “Consent Order” to finalise all financial and property-related agreements associated with your divorce or separation.
Depending on the specific circumstances, the court may move to reject the order for sale, to approve it, or to defer it.
The final arrangements will depend on the financial and practical positions of both parties, as well as the needs and requirements of any children or other dependents involved.
For example, it may be decided that forcing a sale would cause significant unnecessary upheaval to the lives of any minors residing in the property in question, and so the order may be deferred until they leave full time education or until they reach the age of 18.
If you and your ex partner own property as tenants in common, your ex may apply for an order for sale if they wish to sell the home.
Even if you are joint tenants, they may be able to sever that joint tenancy without the need for your consent.
If your ex partner wishes to sell a property when you are both named on the deed, they will be able to follow the above steps even if you refuse to sell the house when working towards a property settlement.
You might, then, decide to let them “buy you out” of your share of the house.
However, if you feel strongly that selling the property would set you or any dependents at a clear and unfair disadvantage, you may decide to let your ex apply for an order for sale, then provide the court with evidence to illustrate why the property should not be sold.
This is a risk, naturally, but you may be able to avoid losing your home – at least until any children leave full time education.
If you and your partner are separating or divorcing, and you are concerned about your future ownership of – or access to – a property, it is vital that you seek legal advice as your first step.
We hope that this article has helped you to better understand the recourse available to you during a divorce or separation – particularly with regards to what to do when your ex won’t sell the house.
We have plenty of other handy guides covering the sale of jointly owned properties, including “Can I Sell My House if My Husband or Wife is in Jail?”.
If you need any further information on selling property, or you are hoping to achieve a fast sale for the best possible price, we can help you.
Get in touch with our specialist team today by filling in our simple contact form, and we will be able to offer you a no obligation valuation and a free cash offer, to better equip you for the road ahead.