How & When to Sell Your House During Divorce in Surrey

It can be stressful enough to move house, let alone sell your house while going through a divorce. However, knowing where to start, and what comes next, can make you feel more confident in your decisions.

Before you decide to sell your matrimonial home in Esher, Hinchley Wood, Claygate or Cobham, read our guide. To make selling during a divorce feel a bit more approachable, we’ve broken down the process of selling during a divorce step-by-step.

A Step-by-Step Guide to selling a house during divorce

Step 1: Understand Your Legal Position

Divorces are complex, so it’s important to seek legal advice early in the process. This will lead towards the financial settlement, the formal process for dividing assets including the house. As joint owners, both spouses must agree to the sale – or one spouse can get a court order. A husband or wife can’t sell the house in the divorce without the knowledge of the other party. If there’s one sole owner, their spouse can register matrimonial rights and must give consent to sell.

Situation	Who must agree to sell	If you can’t agree
Joint owners on the title	Both spouses’ signatures are required to complete a sale	Mediation (around £150 per person, per session) or a court financial order (£321 fee)
Sole owner, spouse has registered Home Rights	The registered spouse’s consent is also required, even though they’re not on the title	Same as above: mediation first, then a court order if needed
Neither party will agree	The sale stays paused until mediation succeeds or a court makes an order	Financial orders typically take three months or more to be granted

Step 2: Decide When to Sell Your House During Divorce

There’s room to decide if you want to divorce or sell the house first – although there are certain implications in each scenario.

Before Divorce

You can sell a house before the divorce is final and use the proceeds to settle joint debts or cover legal costs. However, there can be less legal protection in asset distribution without a finalised settlement in place, and there can be tax implications in some situations.

During Divorce Proceedings

You must get consent from both parties to sell, and again, there are risks to selling before the court has approved any financial agreements.

After Divorce

If you sell the house after the divorce is finalised, you have the protection of greater financial clarity. You both have three tax years to transfer assets tax free to the other partner under the updated CGT ‘no gain, no loss’ exemption rules. If the transfer is part of the formal court-approved settlement, there is no time limit.

Timing	Options and implications
Before divorce	You can sell and use proceeds towards joint debts or legal costs. Asset distribution is not legally protected as strongly.
During divorce proceedings	Both parties must agree to sell. Less legal protection before financial agreements have been approved.
After divorce	Increased financial protection. Three years or unlimited time to transfer assets tax free.

Step 3: What If You Can’t Agree on Selling?

If you can’t agree on selling, you can try mediation at a cost of around £150 per person, per session. The Family Mediation Council holds a register of local mediators. As a last resort, you can seek a court order if your spouse refuses to sell the house. If you need a financial order, can take 3 months or more with a court fee of £321 (check gov.uk for current rates).

What Is a Consent Order and Why Does It Matter When Selling?

A consent order is the legally binding way to formalise a financial settlement reached during divorce, including how the sale or division of the house should be reflected. In theory, without a consent order in place, an ex-partner could make a financial claim against the property – even after the divorce is finalised.

Step 4: Alternatives to Immediate Home Sale

You don’t always have to sell the house in a divorce, there are alternative options to consider. One spouse can remove the other from the joint mortgage and buy out the other’s share with a transfer of equity. Legal and General estimate that 18% of couples over 50 choose this route. Otherwise, you can offset the property’s value with other, equivalent assets or defer the sale.

To avoid selling the house immediately in the divorce, perhaps to give your young children stability until they reach a certain age, you may consider a Mesher Order. These deferred sale orders allow one person to live in the property while the other moves out, retaining ownership. You could equally delay the sale until remarriage, or to wait for better market conditions.

What If You Can’t Afford to Buy Out Your Ex-Partner?

Sometimes neither party can afford to buy the other out, and selling the house in the divorce becomes the only practical option. In this scenario, speak to you mortgage lender early on in the process, as there are risks. For instance, if your house’s current value is less than the outstanding mortgage, then both spouses could be liable to pay the remainder.

Option	How it works	Who keeps the house	Best suited to
Transfer of equity (buyout)	One spouse removes the other from the mortgage and buys out their share	The spouse doing the buyout	Couples where one partner can afford the mortgage alone.
Mesher Order (deferred sale)	A court order postpones the sale, with one spouse living in the property until a trigger event	Ownership stays joint until the sale takes place	Couples with children who want to delay disruption until a set date
Asset offsetting	One spouse keeps the house while the other receives a larger share of other assets, such as pensions or savings, to balance the settlement	The spouse who keeps the house	Couples with other substantial assets available to offset against

Step 5: Financial Considerations

Consult a financial adviser as well as a divorce solicitor as some financial considerations may not be immediately obvious. For example, you must establish the affordability of mortgage repayments. If you both remain on the joint mortgage but one party will pay the bills, then both of your credit scores will be affected if they fall into mortgage arrears with your mortgage lender.

Then there are additional costs, such as estate agent fees and solicitors’ fees. A transfer of equity between spouses won’t normally attract stamp duty land tax, inheritance tax or capital gains tax for three tax years after settlement, or an unlimited time under a court-approved agreement.

There are further complexities, so always get professional advice. It’s better to approach your mortgage lender early, particularly if one party will struggle to keep up payments alone or a joint mortgage needs restructuring before sale.

Key Costs of Selling a House During Divorce at a Glance  

Service	Cost
Mediation session	£150 (per person)
Court fee for financial order	£321
Estate agent fees	1% to 3% of selling price
Solicitor’s fees	£800 (based on Rightmove’s Surrey average selling price of £600,000)

Step 6: Practical Steps for Selling During Divorce

Once you and your former spouse have made the decision to sell as part of the divorce, it’s time to handle the house sale itself. It goes without saying, this will be easier if both parties approach the transaction with professionalism.

• Arrange a professional valuation of the family home
• Set a realistic asking price based on the professional appraisal (you may consider pricing competitively to encourage a quick sale)
• Take a realistic view of timelines, with house sales taking an average of 4-6 weeks and divorces taking 26 weeks or more
• Cooperate with your ex-husband or ex-wife on decisions involving the estate agent and home viewings
• Prepare the property for sale to attract a buyer
• Handle offers and negotiations calmly even at an emotional time

Need help selling a home as a result of divorce?

No two divorces are alike, and it can help to seek expert advice before making a decision about selling the family home. If you would like to discuss selling your house in Cobham or around Esher, Hinchley Wood and Claygate, we will be glad to assist. Contact Davies Property Partners today.

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