Getting divorced is complicated, but when the family home has been on the market for a while and has failed to sell, an emotionally fraught time can quickly turn into a financial and practical nightmare. This is because the property often represents both the largest shared asset and the place that anchors the family’s history, so when it gets stuck on the market, it can leave separated parties in limbo, and unable to move onto the next stage of their lives.
In this article, we explore the main issues and the options that are available when a couple is divorcing but their house won’t sell.
Why the house matters so much in divorce
For most couples, the matrimonial home is their biggest shared asset where both parties have invested financially and emotionally, and provides a home for the children. However, it is often the case that the equity tied up in the property is required for funding separate housing after the divorce.
So when the property can’t be sold, the ripple effects are immediate, putting a complete block on life moving forward. One or both spouses may be unable to afford new accommodation, and divorce finances can’t be finalised, which in many cases leads to resentment. Even if the relationship is otherwise amicable, the unsold property can become a battleground.
Can the divorce be finalised before the house is sold?
The divorce itself, in terms of proceedings can be finalised independently of the financial arrangements. However, it is not generally advisable to apply for the final order before sorting out the financial settlement, because once it is granted, certain rights, such as inheritance and pension entitlements, may be affected.
That said, the court can make a financial order which includes provisions for what happens to the family home, even if it hasn’t yet sold. For example, an order might state that:
- The property must be sold, and the proceeds divided in a specified way; or
- One spouse can live in the property until a triggering event occurs, such as the youngest child turning 18 or leaving full-time education; or
- One spouse buys out the other’s share by a particular date
If the house won’t sell, the court can still include clauses covering what should happen next, such as reviewing the asking price after a certain period, or appointing an independent agent to handle offers.
Who gets to live in the house in the meantime?
If one party decides to move out, it doesn’t automatically mean they lose their ownership rights or interest in the property. However, in general terms, the question of who remains in the home usually depends on need, particularly if there are children involved.
The family courts will always prioritise the welfare of any children, so it is extremely common for the parent who is the day-to-day carer to remain in the home temporarily, even if it means delaying the sale.
But if both spouses need the equity in the property to rehouse themselves, this can lead to a stalemate. A practical compromise might involve one spouse staying temporarily while the house remains on the market, with the other receiving financial compensation later.
What happens if one spouse moves out but still owns the property?
As stated above, leaving the property doesn’t strip a spouse of their ownership rights, but it can carry financial and strategic risks.
- Mortgage liability: Both parties remain jointly responsible for the mortgage unless the lender agrees otherwise. If the spouse remaining in the home fails to keep up payments, it can damage both credit ratings.
- Equity risk: The spouse who leaves may feel powerless if the other controls the sale process or refuses to cooperate.
- Occupation rent: In some cases, the spouse remaining in the home may be asked to pay occupation rent to the other, but this is rare and typically only happens in contentious or high-value cases.
- Practical costs: The spouse who moves out may face the financial burden of paying rent elsewhere while still contributing to the mortgage.
For these reasons, it is important to have clear agreements, where possible—either privately, through solicitors, or via a court order—about who pays what and how decisions about the property will be made.
What if you can’t agree on the sale price or strategy?
One of the most common disputes happens when one spouse wants to drop the price to attract buyers and the other refuses, believing it is worth holding out for a better offer. If there’s no agreement, the matter can ultimately be resolved through a court order, although it is always advisable to try to resolve the issue amicably through mediation rather than applying to court.
If court action is the only option, the judge can direct that:
- The property is sold at a price recommended by an independent estate agent
- Either party must cooperate with the sale
- Only one spouse has conduct of the sale (in rare cases)
The court tends to be pragmatic and expects parties to act reasonably and in good faith. If one spouse is deliberately obstructing the sale by refusing viewings or rejecting fair offers, that behaviour can be taken into account when dividing the assets.
Can one spouse buy out the other?
If selling isn’t working, one spouse might consider buying out the other’s share. This can be an attractive option if one party wants to stay in the home, perhaps for the children’s stability, and can afford to do so.
The first step is to determine the property’s value through an independent valuation. The buying spouse then pays the other their share of the equity, either using savings, a mortgage in their sole name, or through offsetting other assets such as pensions or savings.
This option can avoid the uncertainty of an open market sale, but as stated above, affordability is key. The spouse taking over the mortgage must show the lender they can manage the repayments on their own. If that is not possible, a delayed sale might be more suitable.
What about renting out the property pending a sale?
If the market is weak and the house won’t sell at a fair price, renting it out can be a temporary solution. The rent should be sufficient to cover the mortgage, to allow both parties to move on and live separately while retaining the investment.
However, this option also needs a clear written agreement, covering:
- How the rental income is divided
- Who is responsible for maintenance, insurance, and tax
- What happens when the tenancy ends
- When or how the property will eventually be sold
Bear in mind that becoming a landlord brings legal responsibilities and potential complications. For example, you may need the lender’s consent to let, and income tax may be payable on the rental income. In addition, if you keep the property on the market whilst letting and it subsequently sells, you will have to serve notice on the tenant, which can be expensive, take time, and ultimately put buyers off from purchasing a tenanted property with no guarantee of vacant possession. This will be particularly important to buyers who want to live in the property as their family home rather than purchasing as an investment.
Emotional and practical considerations
Beyond the legal framework, it is important to acknowledge the emotional toll of this situation. The family home can symbolise security, and for many people letting go of it can feel like another loss rather than a new beginning.
When a divorcing couple’s house won’t sell, it can feel like everything is on hold. But there are always options, whether it’s agreeing to a delayed sale, arranging a buyout, or renting temporarily. The key is to approach the situation pragmatically, with clear communication and professional guidance where necessary.
Every couple’s circumstances are unique, and what appears fair in one case might not be in another. The best course of action often depends on timing, market conditions, and the financial needs of both parties, particularly where children are involved.