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Divorce – does the family home have to be sold?

by | Jan 27, 2023 | Blog Bits | 0 comments

In this episode of Quick Property Sale ‘Blog Bits’ we discuss the sensitive side of splitting-up and where it may lead and endeavour to offer an insight to some possible outcomes. With a looming divorce does the family home have to be sold? Let’s find out.

The family home is the centre of family life, and anchors many emotional ties, especially when your family includes children. So, it is to be expected that dividing this prime asset may be difficult, emotional and sometimes contested.

What happens to your home during a divorce?

For many families, the biggest asset involved in your divorce is your family home. When determining what happens to the domestic property during a divorce, the housing needs of both parties are of concern. However, the foremost concern is for the welfare of any children (under the age of 18) and the provision of a suitable accommodation for them.

What happens to the marital home is between you and your partner. All animosity aside, each of you will need to make a decision you both agree on, sometimes with the aid of a solicitor. This could be one party remaining in the home, one party ‘buying the other out’ or basically selling up completely. Selling up means you may need a house quick sale. However, divorce is an extremely difficult time and emotions will run high, this can result in a lack of dialogue about how to remediate assets and belongings. In this instance a solicitor can usually step in to make sure the outcome is fair for both of you.

Can my ex-partner sell our house?

Former partners could possibly try to force you out of the family home but legally they are not allowed to do this. Even once a divorce has been granted, you are still not obligated to sell, and both have the legal right to stay in the home.

If you have children under the age of 18 and one parent has vacated the home most courts will grant the remaining parent the right to stay. Nevertheless, regardless of your circumstances, former partners will be considered equal if there are no kids involved in selling the property. The court’s decision is usually deemed fair so that you can both benefit from any available equity share.

What happens to a joint mortgage when you divorce?

Having an outstanding joint mortgage debt after a divorce or separation can prove difficult. While your separation is still in progress the mortgage still needs to be paid, as both parties are liable for that debt. This is regardless of who is residing in your former home. (Please note: any arrears on the mortgage payments can damage your credit history of both marital parties).

If you know you are definitely divorcing, do advise your mortgage lender about your predicament. Even if you think you will not struggle with mortgage payments they will be able to record this on their files. Some lenders’ are able to you offer a ‘mortgage payment holiday’ which can help give you some financial breathing space.

Does the family home have to be sold?

There are three options for what can happen to the family home during a divorce:

a) Sell the property: The family dwelling can be put on the market – property for quick sale, with any net proceeds then being divided between the parties as mutually agreed beforehand. If there is sufficient equity, is there enough to give each party a deposit to buy a replacement home? If there is not adequate equity for this to happen then there must be a level of fairness; an important factor is the parties’ ability to obtain a mortgage. For example, the person with the higher income has a greater capacity of acquiring a mortgage.

b) When one person remains in the home: The property ownership can be transferred to either party, with or without payment of a lump sum to ‘buy out’ the other person.

If you are considering a transfer of property title, the borrowing ability of the person who seeks to keep the family home is a major factor. That person must have the requisite borrowing capacity to take over the current mortgage in their sole name and have the funds to pay the other party’s exit share.

c) A trust of land can be created: Creating a ‘trust of land’ can be implemented when a home needs to be provided for an adult with young children if they need somewhere to live until they reach school leaving age. When creating a trust of land, there are two common arrangements: ‘Mesher Order:’ where the family property is sold and the equity is released when the youngest minor leaves full time education, the other is called a ‘Martin Order’ where the property is sold upon the demise of the person living there. This alternative is uncommon, as it is hard to police and it seems unfair to the other party to have to wait for their equity of their former home.


In summary, selling the family home does not have to be the only option available to separating parties during a divorce. If you do need to sell your home residence soon and require a quick sales property sale, please do contact us anytime on 01527 50 99 88.


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