My Ex-Spouse Won’t Sell the House, What Can I Do?
When you divorce, it is likely you will divide your assets. It is common for this to involve the sale of property, often the family home.
Selling the family home is a big step and if someone is still living there, they may find it difficult especially if you have children who have grown up in the property. In most cases, this can be navigated with a little patience and understanding. If you are past that point and your ex is actively obstructing the sale, there are legal steps you can take.
A Court Consent Order
If you do not have one, the most important step will be to get a financial consent order from the court.
A consent order is an agreement setting out how finances will be divided. It must be signed by both of you and approved by a Judge. This makes it legally binding and enforceable. You would usually approve the consent order before you get your final order, but it can be obtained after.
If You Already Have a Court Order
If your spouse is preventing a court ordered sale from going ahead, you could try to resolve this in mediation. If that is unsuccessful or not possible, a lawyer can help you to make an application to the court to enforce the consent order.
For this application, you will need evidence including specific examples of how your spouse is making it difficult for the property to be sold . This could include:
- Knocking the “for sale” sign down;
- Interfering with the arrangement of viewings;
- Threating to change the locks;
- Refusing to work respectfully with estate agents and conveyancers;
- Discouraging potential buyers from making offers.
It is vital to keep a record of these behaviours as they occur, as the court will need significant supporting evidence to remove your spouse from the property.
What can the court do to progress the order for sale?
The court can enforce a property sale order and / or ‘delivery up of possession’ (i.e., an order for your ex to vacate the property). This is a serious decision that is made carefully, considering many factors including a balance of harm test.
The balance of harm test is when a court weighs up the potential harm to the person making the application and any relevant children if an order is not made, against the potential harm to the non-cooperative spouse and any relevant children if the order is made.
Alternatively, the court might remove your spouse’s control over the sale process and give you full authority (or ‘conduct of sale’). This lets you handle viewings and complete the sale without their involvement.
Will other aspects of the existing court order be affected?
If there is proof that your ex-spouse has obstructed the sale and you have suffered financially as a result, the judge enforcing the court order can potentially vary the original financial order using the Thwaite legal principle.
What is the Thwaite Jurisdiction?
Thwaite jurisdiction is complex. In simple terms, it is a way to go back to court and vary an order when someone’s bad behaviour has derailed that order and the order hasn’t been fully implemented yet.
Generally, you can use it when:
- The court order hasn’t been fully carried out;
- Changes in circumstances since the order was made have undermined the intention of the original judge; and
- Where the conduct of the respondent can be criticised and has contributed to the loss.
Do you need a solicitor?
This is a complex situation that can be difficult to prove, and a lawyer will help you understand your options.
Family Law in Partnership was recently involved in a reported case that sets out the legal guidelines for dealing with a spouse who refuses to leave the family home, despite a court order to sell it. This case was recorded as WZ v HZ [2024] WFC 407 (B).
It should be noted that this case includes extreme measures which were required in the circumstances, but may not apply to every case. Each case will be dealt with on an individual basis.
If it is of interest, you can read more about the case in a legal article written by Rory Collett for Financial Remedies Journal, who advised on the case.
Next Steps
Navigating difficulties once you have a court order in place can be extremely stressful and frustrating.
If you find yourself in a similar position, our team of divorce lawyers can provide the support and guidance you need. Do contact us below to find out how we can help you.