When you’re going through divorce, who gets the house and or dealing with selling the house can often be one of the most contentious points. And whilst the threat of a forced sale is often thrown around that doesn’t mean you can actually do that.

Can I sell the marital home if it’s in my name?

Well, here’s the sticky thing with divorce, is it doesn’t really matter who owns the property, the house is considered a marital asset, this means both parties have a claim on it. They can even get a matrimonial home rights notice, which will mean that should you try and sell the house, the sale could be blocked during the proceedings. This will mean you can’t even alter the mortgage without their consent.

The easiest thing to do is usually to sell the house and split the remainder after any mortgage etc is paid off, but that isn’t always an option. You need to think carefully about whether you can afford another place afterwards, whether or not there is any equity in the house and how much you have in your savings.

You do of course have some other options, you can buy them out and sell later or if it goes through the court system they may give you an order of sale with the proceeds to be split.

What if there are children involved

If there are children involved it is likely to remain with the primary care giver rather than an order of sale being granted.

A mesher order is common in the case of young children and it will often state the children must be allowed to stay until a specified event such as when they turn 18 or finish education. This varies case to case and if you’re going down this route you should seek advice from a lawyer.

So what can I do if my ex wont sell the house?

The most common solution is the buyout mentioned above, at least if we’re settling outside the courts. But, it’s more likely that you’ll have to apply for an order of sale. To do this you will need to go to county court and obtain a judgement, only then can you apply for an order of sale. You will need to attend a hearing and both you and your ex partners positions and behaviour will be taken into account. If you are awarded the right to sell then you will gain the responsibility of sale and to distribute the money according to whatever was agreed in court.

If your ex still refuses to comply, you will need to go back to court and the judge can sign on their behalf.

If you don’t get the order of sale however and in this case it’s likely a mesher order has been but in place, there isn’t much you can do other than appeal, but if there are children involved it is unlikely that the decision will be reversed as their welfare will be put first.