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Selling the family home

If you and your partner are splitting up, you may wish to sell your home. Your rights to sell the home or to receive a financial share of the proceeds will depend on the legal status of your relationship and whether the home is jointly or solely owned. This will also affect whether you can prevent your partner from selling the family home without your consent.

This page only offers an introductory guide to the law. Speak to your solicitor before coming to any decision about selling your home. Remember, taking legal action can be expensive and upsetting, so it's usually best to try and resolve things between yourselves before resorting to the courts. If you are unable to resolve things, or if you feel you need some help, you could try mediation.

Can my partner sell our home without my permission?

We are joint owners

If you and your spouse, civil partner or partner own the home jointly, both of you will need to agree to its sale. This means that if your relationship breaks down, your partner can't sell your home without your permission.

If you want to remain in the home, you may be able to buy their share. In this case, you'll need to get your home valued by an independent valuer or surveyor, to ensure you set a fair price.

Whatever you do, don't agree to sell the home if you don't have anywhere to go and the proceeds from the sale won't be enough for you to get a new place.

My husband, wife or civil partner is the sole owner

If you are married or in a civil partnership, your spouse or civil partner cannot sell the family home without your permission, even if your name is not on the title deeds. You will need to make a written statement to show that you have agreed to the sale.

Whatever you do, don't agree to sell the home if you don't have anywhere to go and the proceeds from the sale won't be enough for you to get a new place.

If you're afraid that your spouse or civil partner may try to sell the home without your knowledge, you can ask your solicitor to register an inhibition on the property - this means that your spouse or civil partner won't be able to sell the home.

If your spouse or civil partner does manage to sell the home without your consent, in theory, you will still have occupancy rights, which means you would have a legal right to challenge the new owner. However, if the new owner bought the property in good faith, this may prove difficult.

If your partner sells the property without your permission on or after 4 May 2006 and you don't live in it for two years after the sale then you will lose your occupancy rights. If the sale took place before 4 May 2006 then you will only lose your rights if you don't live in your home for five years.

You may also lose your occupancy rights if the person your partner sells the home to then sells it on to someone else. You will only lose your rights in this situation if the person that buys it does so in good faith and for a fair price.

This is a very complicated situation, so you must get advice from your solicitor immediately if you find yourself in this position.

My partner is the sole owner

Even if you have occupancy rights, your partner can sell your home without your consent and you won't be able to go to court to prevent this happening. Unless you have a written agreement stating that you have a financial share in the property, it's unlikely that you'll be entitled to a share of the proceeds.

Can I sell our home if my partner doesn't agree to the sale or has left home and can't be found?

Again, this will depend on your situation.

We are joint owners

Both owners will need to consent to a sale before it can go through. If you want to sell the home but your partner doesn't, you may be able to raise an action of division and sale in court. In their defence, your spouse or partner can ask the court to decide that:

  • the home should be sold and the proceeds divided between you (this will not necessarily be in equal shares), or
  • they should buy your share, either for an agreed price or for a price set by the court.

If your home is sold, you can also ask the court to decide how the proceeds from the sale should be divided between you (see 'what financial share will I get').

We are married or in a civil partnership and I am the sole owner

If you are the sole owner of the family home, you won't be able to sell it without the consent of your husband, wife or civil partner. They will need to sign a written declaration (called an 'affidavit') to show that they have agreed to the sale.

If they refuse and you think they are being unreasonable about this, you can apply to the court to dispense with their consent, so you can sell the home without their agreement. The court may make an order if:

  • it believes your spouse or civil partner is withholding consent unreasonably
  • your spouse or civil partner can't give consent because they're physically or mentally disabled
  • your spouse or civil partner has disappeared and can't be traced.

If the court does dispense with your partner's consent then it might also attach conditions as to how you go about selling the home. For instance, the court might insist that you sell the home by a particular date or for no less than a particular price.

We live together and I am the sole owner

If you are the sole owner of the home and you and your partner are not married or in a civil partnership, you can sell the home without their permission. However, if there is a written agreement stating that they have a financial stake in the property, they may be entitled to a share of the proceeds.

Can I sell my share to my ex-partner?

You might agree that one of you will buy the other person's share in the home. If you decide to do this, it's important to get an independent survey carried out to make sure that you get or pay a fair price for the share. Surveys are not cheap but it's worth spending the money to find out how much your share of the property is worth. The page on buying a home with other people has more information on selling a share in a jointly owned property.

When you are breaking up with someone, you can feel guilty about what has happened, but do not let that influence the financial decisions you have to make. Remember, your share of the house is a valuable asset and, if you are selling it to your ex, it's important to get a fair price as that money could go towards your new home.

What financial share will I get if we sell a home we own jointly?

Being a joint owner doesn't automatically mean that you will each get half of the proceeds if the property is sold. The amount of money you get will depend on:

  • what is written on the title deeds (they will state what percentage of the home you each own)
  • whether you made an agreement when you bought the home about how the financial shares were divided
  • whether either of you has paid a lot of money into the home since you bought it (for example, for repairs or improvements)
  • what you agree on when you split up.

What if we can't agree?

If you can't agree on what you are both entitled to, you will need advice from a solicitor. It might be possible for your solicitor to negotiate an agreement on your behalf. The formal agreement is called a Minute of Agreement or Separation Agreement.

If you still can't come to an agreement, the courts can decide. The court's decision may depend on:

  • whether you are married or in a civil partnership
  • whether you had a verbal agreement
  • how long you have been living in your home
  • whether you yourself paid part of the deposit when you bought your home
  • whether you have made regular payments towards the mortgage
  • whether you have made a big financial contribution to the home since it was bought.

What if we're married?

If you are married and getting a divorce, the courts may decide to give one of you a bigger share. This will depend on your personal circumstances, such as:

  • what income each partner has
  • who will be responsible for looking after the children
  • any other resources you or your partner has.

What if we're in a civil partnership?

If you are getting your civil partnership dissolved, the court granting the dissolution can also grant orders concerning the family home (see 'what financial share will I get if I'm in a civil partnership').

What if we're not married or in a civil partnership?

In this case, the court is less likely to decide to give one of you a bigger share. Its decision will probably be based on what was agreed when you bought the property (for example, what is in the title deeds).

Speak to a solicitor if you're in this situation - they will be able to help you claim any share you're entitled to.

What if I or the other owner went to court to force the sale through?

If one of you has raised an action of division and sale and the court has granted an order to sell, it will usually decide how the shares are to be divided as well. This will usually follow the proportions detailed in the title deeds, or in any other agreement you made when you bought the home. If one of you has contributed more to the home financially, you may get a larger share than was originally set out in the title deeds. Likewise, if one of you has suffered financially for the benefit of the other partner (for example, by looking after the children and taking a career break to do this), this will be taken into account by the court.

What financial share will I get if we are married?

If you are married and getting divorced, what you do with the family home will be decided as part of the divorce process. The court now has extensive powers to decide what will happen to the property you own (including your house) with your husband or wife. If your partner owns the home, you won't be automatically entitled to a financial share because you're not an owner. However, you might be able to claim a share as part of the divorce settlement.

We're getting a DIY divorce

If you are getting a simple 'do it yourself' divorce, you and your husband or wife will need to decide between you how you want to divide your money and property (you can only apply for a DIY divorce in certain circumstances). You should always get financial and legal advice before making any decisions. Information and forms for 'do it yourself' divorces are available from the Scottish Court Service.

We're going to court

If you are applying for a divorce under the ordinary cause procedure, you can apply to the court to decide the matter for you. Before deciding to go to court, bear in mind that this can be an expensive and upsetting process.

The court's decision will depend on your personal circumstances, such as:

  • what income each partner has
  • who will be responsible for looking after the children
  • any other resources held by you or your partner.

There are lots of different decisions the court can make about the family home. It may decide that:

  • the property has to be transferred into the non-owner's name
  • the property has to be sold and the non-owner awarded a 'capital sum', to be paid as a lump sum or in instalments
  • the property has to be sold and the proceeds divided between you
  • the partner caring for the children can stay in the home
  • the partner caring for the children can stay in the home for a fixed period of time (for example, until the children are 16 or 18)
  • one partner can stay in the property and pay rent to the other.

You can read more about divorce proceedings in general at the Adviceguide website.

What financial share will I get if I'm in a civil partnership?

If you are getting your civil partnership dissolved, the court granting the dissolution can also grant orders concerning the family home, if asked to do so. The court can therefore grant an order for the sale of the home, and can also decide how the proceeds should be divided. When doing this, the court must attempt to share the value of the property fairly between you, taking into account personal circumstances such as who has been or will be mainly responsible for childcare.

What financial share will I get if we aren't married but one of us is the sole owner?

If your partner owns the property but you are not married, you will have very few rights to claim a financial share unless you have a written agreement (such as a cohabitation contract) that sets out what your share is. Speak to a solicitor if you're in this situation - they will be able to help you claim any share you're entitled to.

What if I want to stay on in the family home?

You and your partner may decide that you won't sell the home, and that one of you will remain living there. If you can't agree on this, you may need to go to court to settle the issue. The page on staying in the home in the long term explains more.

Scotland map Housing laws differ between Scotland and England.
This content applies to Scotland only.
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The important points

  • If you and your spouse, civil partner or partner own the home jointly, both of you will need to agree to its sale.
  • If you want to remain in the home, you may be able to buy their share.
  • If you are married or in a civil partnership, your spouse or civil partner cannot sell the family home without your permission, even if your name is not on the title deeds.
  • Being a joint owner doesn't automatically mean that you will each get half of the proceeds if the property is sold.

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