Divorce & Property
If you are getting divorced or ending a civil partnership, you and your ex-partner can agree a split of any assets from your marriage, including any property. However, it is important to go to Court to get approval of your agreement in a Consent Order as this makes the arrangement legally binding. If you have children, any Court decision regarding the family home will consider their welfare first, and then spouses/civil partners next. If you don’t want to go to Court, a mediation service may help you reach a compromise.
Who gets to stay in the house during the divorce?
It doesn’t matter if the home you shared with your ex-partner is in just one or both of your names; you could both still have the right to live or stay there. ‘Home rights’ permit both you and your partner to continue occupying your marital home regardless of who bought it.
Both spouses/civil partners have legal ‘home rights’ until a financial settlement is made, or until financial remedies are imposed by the Court as a permanent arrangement. This means that neither spouse/civil partner can be forced to leave the matrimonial home unless there is domestic violence or a Court order.
It’s important to note that while one spouse/civil partner often moves out of the matrimonial home during separation and divorce/dissolution, this does not mean that the non-resident spouse/civil partner automatically forfeits any rights to the ownership and occupation of the house.
During a divorce/dissolution, your financial agreement will decide on whether the person who stays in the home should buy the other’s share, whether your house will be sold and the proceeds split, or if the person who has primary care of the children should stay until the children leave home.
How is property split in divorce?
When it comes to the law, there’s still some ambiguity about working out what constitutes matrimonial property. There is no set formula, and the division of assets is usually based on each person’s financial needs.
The matrimonial home is a unique asset to the family Courts and is given special treatment to ensure that both parties will be left with a roof over their heads once the divorce/dissolution is finalised. Even if one of you has sole ownership of your home, the Courts often hold this with little relevance and other factors are considered alongside this.
The longer your marriage or civil partnership has been, the more likely it is that the ‘financially weaker’ spouse will be entitled to enough money or assets to allow them to be secure. For example, if one partner gave up work to look after children and did not contribute to the mortgage, it can still be argued that they have a right to stay in the home if it can be proven that they have a ‘beneficial interest’.
Court orders dealing with property
When a Court has made its decision, it may issue a property adjustment order as part of the financial settlement. Common orders are:
- Transferring the property from one partner to the other (this could also involve one buying out the other)
- Postponing the home’s sale to a specific date or event, such as when the youngest child turns 18
- Selling the house and dividing the proceeds (usually if there are no children, and if neither partner can afford to stay in the home, or both can afford another home)
Second Properties and Non-Matrimonial Property
Non-matrimonial assets, which include several different asset groups, are those which existed before the marriage and can sometimes be ‘ring-fenced’ in a family Court and may be excluded from a financial settlement.
The longer a couple have been married, the more marital assets they will hold. A couple who has only been together a couple of years have not had long to build up a pool of joint wealth, but a couple ending a 30-year marriage or civil partnership will be in a very different position.
Typical non-matrimonial property assets include:
- Property already owned by one party before the marriage
- Property inherited by one of the spouses during the marriage
- Property acquired by one spouse and solely owned by them, and which is not the matrimonial home
- Property received as a gift by one of the spouses
Assets must remain distinct and separate from matrimonial wealth to qualify as non-matrimonial property. For example, if you owned a boat before getting married but then sold it during the marriage to pay school fees, the money raised by that sale would be considered matrimonial in the event of a divorce.
The primary focus of a family Court judge will always be meeting the financial needs of the poorer partner. If those needs cannot be met by simply dividing the matrimonial wealth, then at least some non-matrimonial assets will be added into the mix.
The best way to protect non-matrimonial assets is by entering into a formal legal agreement with your spouse regarding the division of matrimonial and non-matrimonial assets if your relationship comes to an end. If this agreement is reached before the marriage, it will be called a ‘pre-nuptial agreement ‘or a ‘post-nuptial agreement’ if after the marriage or civil partnership ceremony.
In most cases, pre-nups and post-nups will be considered by the Courts if they were freely entered into and not signed in unfair circumstances (for example, if one partner was unduly pressured, or had no independent legal advice). Placing non-matrimonial assets in a trust can also be an effective way to protect them.
How we can help
Sorting out finances and property after divorce or the dissolution of a civil partnership can be complex, and you should take expert legal advice to protect your interests. Sterling de Zuk specialises in financial settlements and can offer legal advice to individuals throughout Cheshire. If your relationship has come to an end, we would encourage you to get in touch as soon as possible so that your financial situation can be assessed thoroughly before initiating divorce proceedings, the dissolution of a civil partnership or signing a Deed of Separation.
Contact Mark Thomson on email: mark@zukdivorce.co.uk or phone: 0333 070 5651