Can We Finalise Our Divorce Before The House Is Sold?

• Published date: 07 May 2021
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Family Law Group
• Author: Ms Laura Martin-Read

For the majority of people, their most significant asset is the family home. So, it is not surprising that when it comes to dealing with the financial consequences surrounding divorce, questions about what will happen to the matrimonial home are usually top of the list.

In most cases the home will be dealt with in one of two ways - either it is transferred to one spouse, and the other spouse will receive a lump sum of money or an asset such as a pension pot or holiday home in exchange, or it is sold and both spouses receive a division of the sale proceeds. Where a property has to be sold, external factors come into play, such as the property market, the economy, a pandemic, or tax incentives such as the stamp duty holiday. These can affect how quickly a house will be sold, and raise the question of whether a divorce can be finalised before a house is sold?

Laura Martin-Read a solicitor in the family team at Family Law Group, in Milton Keynes says, 'It is commonplace for agreements to be finalised before the matrimonial home is sold, and we can advise on things that you will need to consider in this scenario.'

Occasionally an agreement may be reached between spouses, or a court order made, stipulating that there will be a delay in selling the home until a certain event has occurred. This could be, for example, when the youngest child of the family reaches the age of 18 or finishes full-time education. These types of agreement are increasingly less common, with most people preferring a clean break. The focus in this article is not on an intended delay to the sale, but on one where an unforeseen delay or obstacle occurs to prevent selling the home straight away. This is commonly due to the house being on the market, but without a purchaser being found.

Lessons from the case of Derhalli v Derhalli

If it is intended to sell the home, it is possible for you to proceed and finalise your divorce and financial division, however the recent case of Derhalli v Derhalli [2021] shows that some additional considerations must be taken.

In this case the husband and wife had reached an agreement over their matrimonial finances. Amongst other things, the agreement stipulated that Mrs Derhalli was to receive several million pounds upon the sale of the matrimonial home in West London, which was in the sole name of Mr Derhalli. The consent order was reached in 2016 but the house was not actually sold until 2019 due to a delay caused by the Brexit vote.

During these three...