Sale of Property After Divorce | Thorntons Law Scotland

When a married couple separate and the family home, legally referred to as the ‘matrimonial home’, is to be sold, there has to be an agreement drawn up before any sale. This is required even if the property is only owned by one of the separating couple.

Frequently asked questions

The following are some of our most frequently asked questions when it comes to property sale on divorce.

What should the pre-sale agreement cover?

The agreement should detail who is to be responsible for payments, including mortgage payments, for the property before the sale and which agency is to be responsible for selling the property. It should also cover what is to happen to the proceeds of sale after legal and estate agency fees have been paid and the mortgage has been redeemed. The agreement can either detail how the proceeds are to be divided or alternatively that the proceeds should be held by Solicitors until an agreement has been reached as to how they are to be divided.

What is the matrimonial home?

The house in which a married couple live is called a matrimonial home. Even if the property was bought by one of the couple, or rented by one of the couple before the marriage, it is still classed as a matrimonial home after marriage.

Can I force or block a sale of the matrimonial home?

If the matrimonial home is owned in joint names of a couple who have separated, one or other person can raise an action for sale and an order for how the proceeds should be divided. This is called an application for an order for division and sale. The only way that the court will not grant an order for sale of a jointly owned property is if there is a counter court action raised by the other party for divorce in which that party is seeking an order for transfer of the other person’s interest in the property to them, or an order that they be entitled to live in the house for a specific period.

The court may consider transferring the property title in terms of a divorce action from joint names to the single name of one of the separated couple. This is as long as the lender is prepared to agree to the transfer, and the transfer is part of an overall settlement that provides a fair sharing of the parties’ assets.

The court may be prepared to make an order that one of the spouses is entitled to stay in the matrimonial home, and that might be the case if there are young children living in the property. In these circumstances the Sheriff may make an order that the sale is delayed until a future date, for example to allow the children to complete their education.

How can Thorntons help?

Our Family Law Solicitors can advise you on your rights over the sale of your family home on separation and draw up the necessary legal agreement before the sale for you. We also offer alternative dispute resolution to help separating couples come to an amicable agreement on matters arising from their separation and avoid costly court actions.

At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs. Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward.

Call us on 03330 430 150 for a chat or contact us to book an appointment.

How much will it cost?

We are always clear to clients about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts. We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses.

Please note we do not offer Legal Aid for this service.