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Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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Purpose To establish the legal position regarding the sale

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To establish the legal position regarding the sale of a property, owned by a husband-and-wife where the husband (me) no longer lives at the property (having left in October 2014), but wishes to sell the house as he needs funds to continue.
We have no children between us.
In October 2014 I left the house where I was living with my wife and my stepson (now aged 24). In my opinion at that time the marriage had broken down in particular following my wife having an affair, which happened a few years before me leaving.
Subsequently, I have been renting a modest apartment and living on my own whilst continuing to pay at least half of all the costs related to - what is - a large house. My relationship with my wife has been volatile; we have tried counselling but that didn't work.
The property itself is in an area to the south west of London (Esher). It is in a very sort-after road. Its location will ensure high interest at the right asking price. We have owned the property since May 2004.
My wife is a director and co-owner of a successful career counselling business which is based in the City of London. To the best of my knowledge, my wife equity stake is approximately 37.5% of this business.
In June 2015 I was diagnosed with a serious brain tumor (cancer) and had emergency surgery. I have not worked since, although my employer has continued to pay me. However, that arrangement has now ceased to be replaced by a monthly insurance payment which will be less than half my salary. In addition, as I have not been working I will not qualify for a bonus which would typically make up a substantial part of my annual overall income.
I have told my wife that I am not coming back, which I believe has been understood. Our relationship is strained.
What next?
Prior to leaving the house I took initial legal advice which indicated clearly that I would not risk losing any of my equity in our home as a result of moving out provided that I continue to pay the mortgage etc.
My desired outcome now is to sell the house ASAP for a good price and with the minimum amount of hassle (psychological strength and wellbeing is an essential element of recovery from such a severe cancer).
My immediate questions
Given the above:
1. What is the legal position when two people separate in terms of the decision to sell the marital home?
2. Do both parties have to agree to sell?
3. If one party does not wish to sell the marital home what process then follows to enable the home to be sold and how long does this process take?
In a broader sense selling the marital home will raise the issue of dividing our shared assets.
1. What is the legal relationship – if any - between selling a home and divorce?
2. How long does a married couple need to be separated for a divorce to be granted without grounds?
3. How do you prove the date of when separation commenced?
4. Are there any legal implications if the party not living in the marital home still contributes financially to maintenance and up-keep? e.g. Paying for a replacement washing machine
5. How are the assets divided if the parties involved do not reach agreement and there are no dependent children?
Hi, thanks for your question.
As the property is the marital home you both have the right to occupy it unless there is a court order excluding you. Both parties would have to agree to sell the property, and if there is no agreement an application to court will need to be made for the court to make a decision regarding whether a sale should take place.
The court application will be a financial relief application alongside divorce proceedings under a Form A and a £255 court fee. Both you and your wife will need to provide full and frank disclosure regarding your respective financial positions for the court to make a fair decision for both of you. If the matter is contested it could take anywhere between 6-18 months.
If you are relying on separation you can be separated for two years and with the consent of your wife can apply under this fact. If there is no consent you will either need to be separated for five years or rely on unreasonable behaviour.
The "proof" for a two year separation is the consent of your wife. For five years if it is undefended by your wife the court will accept this as fact.
There are no legal implications if you continue to contribute financially and this will be taken into account when the court makes a decision regarding the finances.
The court will consider all your assets and all your wife's assets and finances and take into account the following criteria when deciding what a fair settlement would be (the starting point is a 50-50 split of all assets):
1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would, in the opinion of the Court, be reasonable to expect a party to the marriage to take steps to acquire;
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. The standard of living enjoyed by the family before the breakdown of the marriage;
4. The age of each party to the marriage and the duration of the marriage;
5. Any physical or mental disability of either of the parties to the marriage;
6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. The conduct of each of the parties, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard it;
8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring (e.g. a right to your husband’s pensions).
Please let me know if you have any further questions regarding this.
HiThank you for your questionMy name is ***** ***** I have been a family lawyer for more than 30 yearsTo give you a more specific reply we need to know many thingsHow much is the house worth and how much is outstanding on the mortgageHow long have you and your wife lived togetherWhat capital did you each bring to the marriageWhat other assets are thereWhat income do you each actually have?
Hi, this question remains open. If you found my information provided helpful please could you rate my response positively as I will not be credited for my response without a rating.
Customer: replied 2 years ago.
Thank you for your advice; as I anticipated, but great to have this verified.
Hope it goes well - if you found the information helpful please provide a positive rating as I will not be credited for answering this question without a positive rating.
Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2851
Experience: Family Law - Specialist in Divorce, Financial Relief and Children Matters
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