Lady holding house - Can divorce force the sale of my house?

Can divorce force the sale of my house?

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Walker Family Law
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Can divorce force the sale of my house?

When a divorce takes place any matters relating to the parties’ finances and property need to be sorted out. If the parties are not able to agree matters, then either may ask the court to sort things out for them. But does this mean that you could be forced to sell your house (i.e. the former matrimonial home) against your will?

The answer to the question, as with so many things, is: it depends.

It depends upon the circumstances of your case. The court certainly has the power to order a sale of your house, but whether it will do so depends upon whether that is the appropriate thing to do in the circumstances.

Equal sharing starting-point

The starting-point when considering a financial/property settlement on divorce is that all matrimonial assets, including the former matrimonial home, should be divided equally (note that it does not usually matter whether the home is owned jointly, or just by one party). Thus if the matrimonial home has an equity, i.e. the value of the property less any mortgage, then that equity should normally be divided equally between the parties.

That does not, however, mean that the property has to be sold. If one party wants to keep the property, then they can buy out the other party’s share by paying them half of the equity, or by agreeing to them having other assets to the same value. If this is a feasible possibility, then the court would usually agree to it, rather than forcing a sale and ordering that the net proceeds of sale be divided equally.

Whether it is feasible depends upon such things as whether the buying party can afford it, and whether the other party can be released from any mortgage on the property if, as is usually the case, they wish to be released. Note that if the mortgage is not being paid off, then it is up to the mortgagee, not the buying party, whether the other party is released.

Equal division not always appropriate

But that starting-point of equal division is not always appropriate, in which case the amount needed to buy out the other party may be considerably less, or even nothing. There are any number of reasons why this may be so, and we couldn’t possibly list them all here. For example, if it was a short childless marriage and one party owned the property before the marriage, it may be appropriate for that party to keep the whole property, with the other party having nothing from it.

Or the earning capacity of the two parties may be considerably different, meaning that the lower earner will need a greater than half share to rehouse themselves, due to their limited mortgage capacity. And if they don’t have any significant mortgage capacity, it may be appropriate for them to have the whole house.

If the parties have been separated for a considerable time and one party has remained in the former matrimonial home ever since, paying the mortgage and other outgoings, then that may be a reason for them to have a greater than half share of the property.

Another common scenario is that the house is required as a home for any dependent children. Here, the court would not usually want the house to be sold, unless it was really necessary (the sale could, for example, be delayed until the children have grown up). Of course, if there is not enough money available to keep the house (in particular to pay the mortgage), then a sale may be unavoidable.

In summary, the court can force the sale of your house on divorce, and will usually do so if it considers that the other party is entitled to a share, and you are unable to buy them out.

The above is of course just a brief summary of what may happen to the former matrimonial home on divorce. This is a complex subject, and if you require detailed advice then you should consult an expert family lawyer.