Can You Force Your Spouse to Sell House in Divorce?
Selling a house after separation can be a contentious family law issue. Spouses often disagree on who should get to live in the home, whether it should be kept, or if selling the house due to separation makes more sense.
One or both spouses may make a claim for the “family residence.” The question of division of property and debt can be resolved when the spouses reach an agreement or the court makes a final order. It can sometimes take over a year before a family law claim is settled or for the parties to get to trial.
What happens to the family residence in the meantime? There are situations where sale of the family home can be forced by order of the court even where one spouse does not agree that it should be sold.
Staying in the family home during separation
A common situation is for one spouse to stay in the family home after separation while the other spouse moves out. It is often the case that the spouse who remains in the family home stays there with the children. If this issue is contested, a party can ask the Judge to determine who should have interim exclusive residency of the family home whether or not the home is registered in their name.
There are ways for a spouse to stay in the house during separation:
- BY AGREEMENT. Spouses can make an agreement on who will occupy the home until all financial matters are resolved in their case. Spouses can agree on who will make the mortgage payments, property tax payments, home insurance payments and home repairs until matters are resolved.
- BY COURT ORDER. The BC Supreme Court can grant interim exclusive occupancy of the family residence to one spouse. If the Court gives one spouse exclusive occupancy, it can also order that the other spouse’s right to demand sale of the family residence be postponed to a certain time.
Selling the family home during separation
One or both spouses may want the family home sold immediately for a variety of reasons such as the mortgage is too expensive, one of the spouses wishes to relocate, the equity in the home is required in order for each of them to buy a new residence or to pay off debt.
If both spouses agree to sell, the property can be listed and sold right away—even if they can not agree on how the sale proceeds should be divided. Some or all of the proceeds can be held in a lawyer’s trust account until issues are resolved either by a future agreement or by court order.
Another option is for spouses to agree on the value of the family home so the spouse who wants to keep it can buy out the other spouse’s interest in the home. The viability of that option will depend on whether the spouse who wants to buy out the other spouse can afford to maintain expenses and secure refinancing on their own, if needed.
The situation is different if only one spouse wants immediate sale, and the other spouse refuses to sell the house. The spouse who wants it sold can not list the home for sale without the other spouse’s consent even if title to the property is in that spouse’s sole name.
However, the spouse can ask the Court to make an order forcing the sale of the house.
How to get a Court Order forcing sale of the family home before divorce
Once a family law claim has been started by filing a Notice of Family Claim, a spouse can bring an Application for an order that the home be sold on an interim basis. Rule 15-8 of BC’s Supreme Court Family Rules gives the Court discretion to order the sale:
Court may order sale
(1) If in a family law case it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court.
Where a sale is ordered but the spouses cannot cooperate or agree, the Court has the power to fix the listing price, appoint a real estate agent and determine terms for showing the property to prospective purchasers. The court can also order one spouse to have sole conduct of the sale of the family home if the other spouse is behaving in ways to frustrate the sale. In some cases, the Court will want to approve an offer for sale they will certainly be asked to do so if one spouse does not accept a pending offer which the other spouse wants to accept. Sometimes, the Court can also order an interim distribution of some of the net sale proceeds if circumstances warrant the distribution.
What is the test on an application for sale of the home?
On an application for the sale of the family residence, the test from Rule 15-8 of the Supreme Court Family Rules is whether the sale is “necessary or expedient.”
I recently assisted a client who successfully obtained an order for sale of the family home on an interim basis and an Order for interim exclusive occupancy of the home pending sale despite the Respondent’s opposition to the sale.
The respondent continued to push for an order postponing any activity with the home until an unspecified future date. The Court agreed with my client that an order for sale was necessary to preserve the home’s value. The spouses jointly owned a matrimonial home in New Westminster.
After separation, the Respondent continued to reside in the home until moving to Vancouver Island in 2021. After the Respondent left the matrimonial home, the property became uninhabitable. When my client re-entered the home, she found deposits of feces, animal urine, used hypodermic needles and fentanyl patches littered throughout the home. Repairs to the basement necessitated by a sewer backup were incomplete and the yard outside the home was heavily overgrown with weeds.
The home had become a wasting asset due to the fact that the Respondent had not maintained the home. My client had been paying one half of the expenses for the home since the parties separated while the Respondent had been borrowing money from a joint line of credit to pay her half share. In the circumstances, the Court agreed with my client that the interim sale of the home was necessary. See L.J.R. v. M.S.B., 2022 BCSC 147 for the full reasons for judgment.
An immediate sale of the family home may not be "necessary", but the Court may still order that a sale prior to trial is "expedient" in all of the circumstances. In Reilly v. Reilly, 1992 B.C.J. No. 2561, the Court explained that the question of what is “expedient” means “advantageous to both parties.” In Reilly v. Reilly the Court concluded it was in the best interests of both parties that an order for sale be made. Both parties were in their mid-50s. They had married in 1958 and separated in 1987.
Their six children were all adults, the youngest being 23 years of age. Mr. Reilly moved out of the matrimonial home in 1987 and Mrs. Reilly continued to reside there. One or more of the adult children had resided with her since the separation, by choice. Mr. Reilly applied for the interim sale of the home. Mrs. Reilly wanted to stay in the home until the issues of division of property and maintenance were resolved at trial which was unlikely to proceed for another year or more.
These were the factors that supported the Court’s decision to order the interim sale of the home as being in the interests of both parties: the marriage breakdown occurred almost 5 years ago; the wife was unable to maintain the matrimonial home on her own and property taxes had fallen into arrears; the husband was not able to sustain the purchase of another residence without access to the equity in the family home; the matrimonial home would inevitably be sold to give effect to the division of the family assets at the eventual trial, and, finally, the maturity of the children. The Court also concluded that a sale might facilitate settlement of the remaining issues between the parties.
Is it better to sell the house before divorce?
You may wish to get legal advice about whether you are likely to be successful in having the court order the sale of your family home before trial or if you will be successful in opposing a sale of the family home prior to trial. the sale. For legal advice customized to your situation, contact Valerie M. Little Family Law Corporation. Email or telephone us at 604-526-3333.