Property and divorce

[tweatypie]

I'm looking for some impartial advise on what happens in the situation where both parties agree to separate but one of them refuses to agree to sell the marital home which is jointly owned? Kids are involved, primary age. Does it have to go to court? What will a court generally decide??

Mediation first, then court. Once solicitors start getting involved you may as well both just turn the house over to them anyway.

I know. That's my take on it too. Unfortunately the other party is digging their heels in and refusing to discuss selling the property.

Completely depends on their circumstances which no one knows here
Housing the children is priority And a court is not likely to force a sale if that means they can be housed by the primary carer
Equally courts don’t necessarily care about keeping children in fmh and will force a sale if down sizing etc is an option that allows all parties needs to be met
Only a solicitor will be able to advise really

You haven’t given enough info for anyone to tell you what a court would decide.

Where are you based? Laws differ greatly based on country.
How much are the joint assets? Are there any outside of the equity in the home?
Who is the primary carer?
How big is the current home?
What are the proposed contact arrangements post divorce?

These are all factors that a court / mediator will take into consideration.

Essentially look at divorce like this. All assets declared and thrown into a bucket. Then the assets are carved to essentially try and ensure a fair (ish) distribution that enables both parties to provide a home/ roof over the childrens heads. (That’s England anyhows). Ireland as an example is very different.

@sassbott sorry, I wasn't sure how much detail to include...

No assets to speak of outside of the house. Based on England.
Primary care of children has not been discussed yet as it will be another battle. I would imagine 50/50.
The house has £100k approx equity in it and neither has the means to buy the other out and take on the mortgage. It is 4 bed... 2 primary children to house.

Thank you for your information. This is not my situation but a close friend and I'm trying to help her the best way I can as she is in a state 😒

Tbh unless one party agrees to not force the house sale, and allow the children / ex to remain in the home until a a certain age, based on the above I think the house needs to be sold. The assets need to be split and a four bed house is bigger than any one party needs. So a court would most likely say yes, a smaller property will suffice. And how else will the court award sufficient monies to both side to enable 50/50 contact? Both parties need to house the children.

The only circumstances I have seen where a sale is not triggered is where (as I’ve said) one party retains their stake/ potentially continues to pay mortgage and when the youngest hits 18, the house is sold and monies divvied.

Try and tell your friend to not involve lawyers. Costs rack up very quickly and it will erode that 100k. A good mediator will have enough experience to know what generally happens and will advise accordingly.

Both parties need to understand all assets and debts are part of the marital pot, pensions, credit cards, cards. All need to be valued.

I have recommended this on MN before but as a person in the midst of a very messy divorce, I highly recommend your friend gives The Smart Divorce podcast a listen. It is essential listening, in my view.

I recently got divorced. We ended up avoiding courts and just used solicitors. It was deemed we both needed adequate housing for our 2 children as we are splitting childcare 60/40. As I earn substantially less than exDH and unable to raise as much mortgage on my own I got substantially more equity. It's resulted in us both buying houses of similar size and value.