Selling a Property During Divorce, Joint Ownership, Consent Orders and Timing

The Matrimonial Home Is Often the Largest Asset

For most couples going through divorce or separation, the family home represents the largest single asset, and one of the most contested. Understanding how joint ownership works legally, what the options are, and what happens when one party will not cooperate is essential before making any decisions about the property.

Joint Tenants vs Tenants in Common

How you own the property together determines your rights on sale. There are two forms of joint ownership in England and Wales:

Joint Tenancy

Both owners hold an equal, undivided share of the entire property. If one owner dies, their share passes automatically to the surviving owner (the **right of survivorship**), regardless of what the will says. Neither owner can separately sell or mortgage their share without the other's consent.

Most married couples who bought together are joint tenants, particularly if they did not take specific legal advice about ownership structure at the time.

Tenants in Common

Each owner holds a defined share of the property, which may be equal (50/50) or unequal (e.g. 60/40), as specified in a declaration of trust. Each owner can leave their share in their will. Tenants in common can, in theory, sell their individual share, though in practice, finding a buyer for a partial interest in a property is difficult.

**To check which applies:** Look at the title register held at HM Land Registry, specifically the **Proprietorship Register** (B section). If it contains a restriction such as "No disposition by a sole proprietor of the registered estate... is to be registered," the owners are tenants in common. Property Passport UK displays title tenure information sourced directly from HMLR.

Severing a Joint Tenancy

If you are joint tenants and want to ring-fence your share for your estate (rather than have it pass automatically to your spouse), you can sever the joint tenancy by serving written notice on the other owner and registering a Form A restriction at HM Land Registry. This converts the ownership to tenants in common. Many family law solicitors advise doing this as soon as separation is decided.

When One Party Refuses to Sell

This is the most contentious scenario. If one party wants to sell and the other refuses, there are several routes available:

Application Under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA)

Either co-owner can apply to the court for an order requiring the property to be sold. The court will consider a range of factors, including the welfare of any children residing in the property, the original purpose of the trust, and whether sale would be unfair in the circumstances.

This process takes time, typically six to twelve months, and costs money. It is usually used as a last resort or as leverage to reach a negotiated agreement.

Order Within Divorce Proceedings

Within matrimonial proceedings, the court has broad powers under the **Matrimonial Causes Act 1973** to make property adjustment orders, including an order requiring a sale. This route is often faster than a standalone TOLATA application for divorcing couples, as it falls within the existing case.

Mesne Profits

If one spouse has remained living in the jointly owned property after separation and the other has had to rent or mortgage elsewhere, the absent partner may be entitled to claim **mesne profits**, a financial remedy equivalent to a notional rent on their share of the property for the period of occupation. This is not automatic; it is typically raised in negotiations or proceedings.

The Consent Order and Clean Break

Once agreement is reached on how the matrimonial finances are to be divided, including the property, the arrangement should be formalised in a **consent order**, approved by the court. Without a consent order, either party can make further financial claims against the other in the future, even after divorce.

A **clean break order** goes further: it severs all ongoing financial ties, preventing either party from making future claims against the other's income or assets. For most couples where the property is the main asset and there are no ongoing maintenance obligations, a clean break is highly desirable.

**Do not complete the sale of a joint property without a consent order in place.** Distributing sale proceeds without a court order provides no protection against future claims.

CGT and the Matrimonial Home

Principal Private Residence Relief

If the property has been your main home throughout your ownership, **Principal Private Residence (PPR) relief** should exempt the entire gain from CGT.

The 9-Month Rule for Separating Couples

PPR relief automatically applies for the last nine months of ownership, even if you have moved out. This means a departing spouse who moves out and sells within nine months will generally have no CGT exposure. Beyond nine months, CGT may become payable on the departed spouse's share of any gain.

HMRC extended this window from nine to nine months in April 2023 (it had previously been nine months, then temporarily extended to 18 during COVID, then returned). **Seek specialist tax advice** if more than nine months have elapsed since you vacated the property.

Transfer Between Spouses in the Year of Separation

Transfers of property between spouses in the tax year of separation are treated as no gain/no loss for CGT purposes. This means you can transfer ownership without triggering a CGT charge, provided it happens in the same tax year as separation. After the year of separation, this relief ends and a transfer is treated as a disposal at market value.

Using a Jointly Instructed Solicitor

Where the divorce is amicable, both parties can instruct a single solicitor to handle the property sale, a **jointly instructed** conveyancer. This reduces costs and simplifies communication.

However, if there is a dispute about how sale proceeds should be divided, or about whether to sell at all, each party should instruct their own solicitor. A single solicitor cannot act for both parties where their interests conflict.

A Summary of the Key Decisions

Property Passport UK

Before instructing an agent, you can look up the property on Property Passport UK to review its EPC rating, title tenure, flood risk, and sold price history. This gives both parties, and their solicitors, an objective data starting point, independent of either side's narrative about the property's condition or value.