What if your former partner will not cooperate with the sale of the family home?

Financial settlements reached on divorce often include an order for the sale of a property. In many cases, the sale proceeds smoothly – the property is marketed, an offer is accepted, and the net proceeds are divided in accordance with the court order.

However, difficulties can arise where one party drags their feet. This may involve failing to engage with or refusing to sign paperwork with the estate agent and/or conveyancers, rejecting reasonable offers, obstructing viewings or simply failing to take the practical steps needed to progress the sale.

If you find yourself in this situation, it is important to know that a court-approved financial remedy order is not merely a statement of intent. It is a binding court order and there are enforcement options available where one party fails to comply.

Start with the wording of the order

The first step is to review the terms of the order carefully. Many orders contain detailed provisions governing the sale process, including when the property should be placed on the market, which estate agents should be instructed, how the asking price should be determined and what should happen if the parties cannot agree on an offer.

The more detailed the order, the easier it is usually to identify whether there has been a breach and what steps can be taken to address it.

Where an order contains specific obligations and deadlines, it is generally easier to demonstrate that one party has failed to comply. For example, if the order requires the property to be placed on the market by a particular date or provides that an offer above a certain level should be accepted, there is a clear benchmark against which the other party’s conduct can be assessed.

However, many orders are drafted quite generically as it is often not known in advance that one party will obstruct the sale and the court will not ordinarily pre-empt a dispute arising over the sale.

Practical steps before considering enforcement

It is usually sensible to try to resolve the issue directly with your former partner first before considering involving the court.

This may involve correspondence reminding the other party of their obligations under the order and setting out the consequences of continued non-compliance. In some cases, a formal letter from solicitors is enough to prompt action and deter the defaulting party from their current behaviour towards the sale of the property.

It is also important to keep evidence of the obstruction. For example:

• Failure to respond to correspondence.
• Refusal to sign documentation.
• Cancellation of viewings.
• Rejection of offers which are clearly within the parameters of the order.
• Failure to vacate the property when required.

Having a written audit trail of all communications can become important if the court’s involvement is required, as it shows written and contemporaneous evidence of one party’s efforts and the other party’s lack of engagement / active frustration of the sale.

When can the court become involved?

If one party continues to obstruct the sale, the other party can apply to the court to enforce the order.

The court’s approach will depend on the nature of the breach and the terms of the order itself. The court has wide powers to ensure that orders are implemented and will generally be concerned with achieving the outcome originally intended by the financial settlement.

Examples of orders the court may make include:

• Requiring compliance within a specified timeframe
• Giving one party sole conduct of the sale – this means that they will solely make decisions about asking price and offers to be accepted
• Directing the occupant to vacate the property
• Authorising a judge to sign documents on behalf of the non-cooperative party
• Making a costs order against the party causing the delay

In appropriate cases, the court can effectively remove the ability of the obstructive party to frustrate the sale process.

What is the threshold for successful enforcement?

A common misconception is that enforcement applications are difficult to pursue successfully but in reality, the court’s primary concern is whether there has been a clear failure to comply with a binding order.

The applicant will generally need to show:

• There is a valid court order in force (this includes having the final divorce order as well as the financial remedy order)
• The order contains obligations which are sufficiently clear and certain
• The other party knew about those obligations
• The other party has failed to comply without reasonable justification

The court will also consider whether the alleged breach is genuine and substantive. Minor disagreements or isolated delays may not justify significant intervention. However, a persistent pattern of obstruction or deliberate non-compliance is much more likely to result in enforcement action.

What are the consequences of a party unreasonably delaying the sale?

Where one party’s conduct has caused unnecessary expense, such as needing to return the matter to court for the order for sale to be enforced, the court may be prepared to make a costs order. The general rule of “no order as to costs” that usually applies in financial remedy proceedings (i.e. each party is responsible for their own legal costs) does not apply to enforcement applications. Instead, the court has the power to make costs orders against the defaulting party if it considers it necessary and/or proportionate to do so.

How we can help

A delayed property sale can be frustrating, expensive and emotionally draining, particularly where the financial settlement was intended to provide a clean break.

We regularly advise clients on both sides of these disputes, whether that involves encouraging compliance through correspondence, negotiating practical solutions or pursuing enforcement proceedings through the court.

If your former partner is preventing the sale of a property that is subject to an order for sale, obtaining early legal advice can help protect your position and minimise further delay.

Please contact our family team to help you to achieve a timely sale of your property.