We are married and have a joint property. My other half wants to force a sale in court. Can they do this?


House Split PropertyDivorce is a terrible time for all those involved but it can be made worse if you are worried about how the family home will be treated in court.

In divorce and financial proceedings the Court has the power to order sale of the house or transfer of property to one or the other of you. When making a decision the court will take all your family and financial circumstances into account including the following:

  • How long is the marriage or civil partnership?
  • How do we ensure both parties housing need is met?
  • Are there any children involved – and how do we prioritise their housing need?

Will granting the court leave you homeless?

The court will not want to make you homeless. The court will assess your financial position to ensure this does not happen.

Was your marriage or civil partnership relatively short?

If the union was relatively short, more than likely the court will order that you each leave the marriage or civil partnership with what you put in, and anything accumulated whilst together is divided equally. Of course if there are children – then the children’s needs are placed as a priority and that can override everything else.

Are there any children involved?

If there are children involved the court will aim to maintain as much of a normal life for them as possible. This can be done by ordering that the sale of the house is delayed to a future date so the spouse who is the primary care-giver stays in the house until the children are 18.

Can I make my spouse move out?

The current financial climate means many married couples have to live together after separation because neither can afford to move out straight away. Each and both of you have a right to stay in the ‘matrimonial home’ until all finances are agreed or made subject to an order of the court. There are a number of things that you can do if you are still living in the house together and you think you or your children are in danger because of your spouses’ behaviour. One of those things is an occupation order.

You can apply for an occupation order at either a Country or Magistrates' Court, if you want to stay, return to, or exclude someone from your home. The courts will consider such things as whether you have children, you and your partner’s income, whether either of you could stay elsewhere, and the impact of the order on your, health, safety or wellbeing when considering implementing one. Although this is only short term relief from the situation, it is worth discussing it with your legal advisor or solicitor.

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