Can my ex force me to sell our house? 

“My ex-partner and I split up six months ago. They want to sell the house, but I want to stay. Can they force me to sell?” 

Breaking up is difficult enough without having to worry about what will happen to your home. One of the most common questions separating couples ask is: “Can my ex force me to sell our house?” If your ex wants to sell the property but you want to stay, it can be difficult to know where you stand and whether there is anything you can do to stop a sale. 

The short answer is yes; your ex may be able to force a sale of the property. However, the Court will not automatically order a sale simply because your ex wants one. Whether a sale is ordered will depend on the circumstances of your case, including who owns the property, the purpose for which it is held and whether there are any children living there. 

In many cases, an application must be made to the Court for an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). 

Who owns the property? 

The starting point is to establish who owns the property and how it is owned. The legal position may differ significantly depending on whether the property is jointly owned, owned by one party in their sole name, or subject to a declaration of trust setting out the parties’ beneficial interests. 

If both you and your ex are registered as legal owners, you will generally both need to agree to a sale and sign the conveyancing documentation. If agreement cannot be reached, one party may apply to the Court for an order requiring the property to be sold. 

If the property is legally owned in your ex partner’s sole name, they will usually be entitled to sell it unless there is a court order preventing them from doing so or you have a separate interest in the property. 

If the property is legally owned in your sole name, your ex will have to establish that they have a beneficial interest in the property and will ultimately need to obtain a court order to force a sale and confirm the extent of their interest. 

What is an order for sale? 

An order for sale is a Court order requiring a property to be sold. Applications for orders for sale are commonly brought under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) when joint owners cannot agree what should happen to a property following the breakdown of a relationship. 

If the Court grants an order for sale, it may also determine how the net sale proceeds should be divided between the parties. 

Can I simply refuse to sell? 

Not necessarily. Many people assume that refusing to cooperate will prevent a sale altogether. 

In reality, if you and your ex cannot agree on what should happen to the property, your ex may apply to the Court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Under TOLATA, the Court has the power to determine disputes relating to jointly owned property, including whether a property should be sold. 

What factors does the Court consider? 

When deciding whether a property should be sold, the Court must consider a number of factors, including: 

• why the property was originally purchased; 

• the purpose for which it is currently held; 

• the welfare of any minor children living there; and 

• the interests of any mortgage lender or other secured creditor. 

Every case turns on its own facts and there is no automatic rule that a jointly owned property must be sold following separation. The Court will consider all relevant circumstances before deciding whether an order for sale should be made. 

For example, if the property was purchased as a home for you and your ex and the relationship has now ended, the Court may conclude that the purpose of the ownership arrangement no longer exists. In those circumstances, a sale is often considered appropriate. 

Children are an important consideration, but they do not automatically prevent a sale. A common misconception is that a parent can always remain in a property until a child reaches adulthood. Whilst the Court will take the welfare of any minor children into account, it must balance that factor against all the other circumstances of the case. 

Can I stop my ex from selling? 

Possibly. Whether you can prevent a sale will depend on the particular circumstances of your case and the reasons for opposing the sale. 

For example, you may be seeking to buy out your ex’s interest, obtain mortgage finance in your sole name, postpone a sale until a specific future date, or rely upon other circumstances which make an immediate sale inappropriate. 

However, if your only reason for opposing a sale is that you do not wish to move, that may not be sufficient to prevent a sale indefinitely. 

Do most cases go to Court? 

No. 

Court proceedings can be expensive and time-consuming. For that reason, many separating couples attempt to resolve disputes concerning the family home through negotiation, mediation or other forms of alternative dispute resolution before asking the Court to decide the issue. 

Common outcomes include: 

• an agreed open market sale; 

• one party buying out the other’s interest; 

• a sale at a future agreed date; or 

• some other mediated settlement. 

Reaching an agreement at an early stage can often save significant time, legal costs and stress. 

What should I do if my ex wants to sell? 

If your ex has indicated that they wish to sell a jointly owned property, it is sensible to obtain legal advice as early as possible. 

The legal position is often more complex than many people realise. Issues relating to legal ownership, beneficial ownership, declarations of trust, occupation rent, mortgage payments, improvements to the property and equitable accounting can all affect the outcome. 

Early advice can help you understand your rights, assess the strength of your position and identify the most practical route forward. 

How Birketts can help 

Our specialist Home Ownership Disputes lawyers regularly advise clients involved in disputes concerning jointly owned property, including applications for orders for sale under TOLATA. 

Whether your ex is seeking to force a sale, you wish to remain in the property, or you are looking to negotiate a buy-out or agreed sale, we can help you understand your rights and work towards a practical resolution.