The Quick Answer
You can sell a jointly owned property at any point after separation, with or without a divorce in progress. Both owners simply need to agree. The legal process is the same as any other property sale.
You don’t need to wait for divorce proceedings to begin, let alone finish. In fact, selling before the divorce is finalised can simplify the financial settlement: with the property dealt with, there’s one less thing to negotiate.
This guide covers the practical process, what happens when one person is still living in the property, and the different legal position for unmarried couples, who have meaningfully fewer automatic protections than married ones.
First: Do This Now, Sever the Joint Tenancy
If you and your ex own the property as joint tenants (the default for most couples who buy together), there’s something worth doing immediately, before anything else.
What joint tenancy means: Both of you own the whole property together. If either of you were to die before the property is sold, your share would pass automatically to the other, regardless of what your will says.
Why that matters after separation: If you die while the property is still jointly owned, your ex could inherit your share by default. That’s rarely what either party wants once a relationship has ended.
The fix: Sever the joint tenancy and become tenants in common instead. As tenants in common, each of you owns a defined share, which can be left to whoever you choose in a will.
How to do it: Serve a notice of severance on your ex using Form SEV, then register a Form A restriction with the Land Registry to reflect the change on the title. You can do this without your ex’s agreement, it’s free, and it takes effect as soon as the notice is served. The Form A restriction then records it on the title.
This is one of those things that takes five minutes and can prevent a significant problem. If you haven’t done it yet, it’s worth doing now.
The Practical Process
Once you’ve both agreed to sell, here’s how the process works:
Step 1: Get independent valuations
Get two or three estate agent valuations to establish the current market value. On the Wirral, where average prices sit around £222,000, even a £10,000 difference in valuation estimates can meaningfully affect how the equity is divided. If you and your ex can’t agree on the value, a RICS surveyor can provide an independent Red Book valuation: a formal, evidenced assessment that both parties typically accept.
Step 2: Agree how to split the proceeds
This needs to be in writing before the sale completes, not agreed verbally during or after. For married couples, this should ideally be through a consent order (see below). For unmarried couples, a Declaration of Trust or a simple written agreement, signed by both parties, establishes what each person receives.
What the split actually is (50/50, 60/40 or something else) depends on your circumstances: whose name is on the deeds, whether one person contributed more to the purchase or mortgage, any trust arrangements, and (for married couples) the Section 25 factors the courts apply. See our guide to splitting assets in a divorce for the full picture on how the law determines fairness.
Step 3: Instruct a solicitor and an estate agent
Both names are on the deeds, which means both of you need to be represented through the conveyancing process. You can each use the same solicitor (if there’s no conflict of interest), or you can use separate solicitors, which is more common where communication is strained. The solicitor distributes the proceeds according to your agreement when the sale completes.
Step 4: Both must sign
Every transfer document requires both signatures. If your ex won’t sign at completion, the sale cannot proceed, which is why having everything agreed in writing before you go to market is so important.
Step 5: Both receive proceeds
Once the mortgage is cleared and costs are paid, the solicitor distributes the remaining equity according to your written agreement.
What If One of You Is Still Living There?
This is where the practical and legal picture gets more complicated.
The person living in the property has no greater legal right to it just because they’re there. Being the occupying partner doesn’t give you veto power over a sale, and it doesn’t entitle you to a larger share. Legal ownership (whose names are on the deeds) is what determines rights.
For married couples: The non-occupying partner retains their claim to the property regardless of where they’re living. The occupying partner has matrimonial home rights, which means they can’t be forced out without a court process, but they also can’t block a sale that both parties have agreed to.
For unmarried couples: Rights are determined by whose name is on the deeds and any trust arrangements. If only one name is on the deeds, the occupying partner may have limited formal protection (see the section on unmarried couples below).
Managing viewings practically
You have a legal right of access to the property with proper notice, but the occupying partner can make viewings difficult if they choose to. This is one of the most common friction points in separation sales, and one of the strongest arguments for a direct sale that avoids viewings entirely.
If viewings are necessary, try to arrange them for times when the occupying partner isn’t there. Keeping the sale process smooth benefits both parties: delays cost money and prolong the connection neither of you wants.
Unmarried Couples: Know Your Rights
This is where the legal picture changes significantly, and where people most often assume protections that don’t exist.
The basic position: If you’re not married and not in a civil partnership, your property rights are determined by legal ownership (who is on the title deeds) and any trust arrangements you've made. There is no equivalent of matrimonial law for unmarried couples.
If your name is not on the deeds: You have no automatic right to a share of the property, regardless of how long you’ve lived there, how long the relationship lasted, or how much you contributed emotionally. You may have a legal claim, but you’d need to prove it.
Claims by unnamed partners are made under the law of trusts, specifically:
- Constructive trust: You made financial contributions to the purchase price, mortgage payments, or improvements that increased the property’s value, in circumstances where both of you understood you’d have a share.
- Proprietary estoppel: You acted to your detriment (spending money, giving up other options) in reliance on a promise or expectation that you’d receive a share.
These claims are expensive to pursue and uncertain in outcome. If you think you may have a claim and your name isn’t on the deeds, get legal advice urgently, before the property is sold and the proceeds distributed.
The legislation: Property disputes for unmarried couples are governed by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), not the Matrimonial Causes Act. The court’s approach is different, the factors considered are different, and the protections are more limited. See our guide to what to do if your ex won’t sell for more on how TOLATA works in practice.
The key message for unmarried couples: Get legal advice early. The gap between what people assume they’re entitled to and what the law actually gives them is wider for unmarried couples than for anyone else. Don’t discover that gap after the sale has completed.
Getting the Agreement in Writing
Whatever your situation (married, unmarried, separated or divorcing), the agreement about how proceeds are split needs to be in writing and legally robust.
For married couples: A consent order is the gold standard. It makes the agreement legally binding and, crucially, extinguishes either party’s right to make future financial claims. Without one, claims can be made years after the divorce. The consent order process is explained in our guide to selling a house after divorce.
For unmarried couples: A Declaration of Trust or a formal written agreement between solicitors, signed by both parties, is the appropriate route. This isn't as automatic as a consent order (it doesn't bar future claims in the same way), but it creates a clear, evidenced record of what was agreed.
A handshake deal is not enough. A text message agreement is better than nothing, but it’s not the same as a signed, solicitor-drafted document. The time to sort this out is before the sale completes, not after.
When You Can’t Agree
If you’ve reached an impasse (one of you wants to sell and the other won't engage), the process is the same whether you’re married or not:
Try direct negotiation first. If that fails, mediation (which is required before any court application in matrimonial cases). If mediation fails, apply to court: for a financial remedy order if you're married, or under TOLATA if you're not.
We’ve covered the full options, including the legal routes and their realistic costs and timelines, in our guide to what to do if your ex won’t sell.
Tax: What You Need to Know
Capital Gains Tax on the sale itself
If the property is your main home (or was until recently), Private Residence Relief means no CGT on the sale. For most separating couples selling the family home, this applies.
CGT-free transfers between separating spouses
Married couples can transfer assets between each other at no gain/no loss for up to three tax years after the end of the tax year in which they separated, with no time limit if the transfer is made under a formal consent order or court order.
Unmarried couples don’t get this extended window. Transfers between unmarried partners are treated as disposals at market value for CGT purposes, so if the property has increased in value since the departing partner left, CGT may apply on their share when it’s transferred.
Stamp duty on buyouts
For married couples, a transfer as part of a divorce or formal separation agreement is exempt from Stamp Duty Land Tax, even if a mortgage is being assumed.
For unmarried couples, no such exemption exists. SDLT is calculated on the chargeable consideration, typically the mortgage share being assumed plus any cash payment. However, if the total chargeable consideration falls below the SDLT threshold (currently £125,000), no SDLT is due. Many Wirral buyouts won’t trigger SDLT in practice given typical mortgage balances, but it depends on the specific numbers. Get advice before completing a transfer.
One benefit of formal separation for stamp duty purposes
Once you’ve agreed to separate permanently, you’re treated as separate individuals for SDLT purposes, meaning each of you can buy a new home without being treated as owning each other’s property. This removes the risk of the higher rate surcharge applying when one of you buys somewhere new.
Once the tax side is clear and you've both agreed to sell, get in touch. We'll look for a buyer from our network and work to a completion date that suits you both, without viewings if you'd rather not have them.