What happens to property in a divorce?

Navigating and fairly dealing with the division of property during a divorce can be one of the most complex aspects of the process. Understanding how property is treated legally following the dissolution of a marriage is crucial for both parties involved.

Dividing property in divorce

If you and your ex-partner reach an agreement on how to divide your assets, including your property, the agreement will be drawn up into a consent order and sent to the court for their approval. Once it has been approved and sealed by the court the agreement is legally binding.

If you are unable to agree directly, mediation can be a cost-effective solution to help both parties reach a compromise without the need to litigate. Making a court application is generally seen as a last resort due to the potential high costs involved.

How will the courts work out how to fairly divide property?

In divorce proceedings, courts in the UK initially aim to divide property equally between the spouses, applying what is often referred to as the ‘yardstick of equality’. However, this serves merely as a starting point, rather than a strict rule.

The court carefully considers various factors, including each spouse’s needs and the needs of any children involved, to arrive at a division that is deemed fair and appropriate for all parties concerned. The complexity and uniqueness of each case makes predicting the exact outcome challenging.

Types of property considered

Property that may be divided can include:

• The marital home is often the largest asset. Decisions need to be made whether one spouse will retain it or if it will be sold and proceeds divided.
• Real estate investments like other properties, including vacation homes and rental properties.
• Personal property such as cars, furniture, art, and other belongings.

Factors affecting property division

Courts consider various factors when dividing property, including:

• Longer marriages may see a more equitable split of assets.
• Courts often consider the economic circumstances of each spouse at the time of the division.
• The financial and non-financial contributions made by each spouse, such as being the traditional ‘homemaker’ and primary carer of the children.
• The primary parent needing to remain in the family home with the children.

Special considerations for the marital home

Deciding what happens to the marital home can be particularly challenging. Options include:

• One spouse may buy out the other’s interest or otherwise compensate them.
• The proceeds may be divided based on the court’s discretion or mutual agreement when selling the home.
• The sale is postponed, often until children reach adulthood, to maintain stability.

Legal steps for property division

The legal process generally involves:

• Accurately assessing the value of all property to be divided.
• Spouses may negotiate settlements with legal guidance to reach a mutually acceptable agreement.
• If negotiation fails, the court will make a final decision on the division.

Protecting your interests

To protect your interests:

• It’s advisable to instruct an experienced divorce lawyer who can navigate the complexities of property division.
• Keeping thorough records of all assets, debts, and investments is crucial.
• If in place, prenuptial agreements can predetermine how assets are divided, simplifying the process.

Property division in divorce is a multifaceted issue that requires careful consideration and professional guidance. By understanding the legal landscape and preparing adequately, you can ensure a fair and manageable resolution to property matters following a divorce.

What are my rights if I wasn’t the primary income earner in a household, or didn’t own the property?

The starting point is to determine whether the property in question is deemed to be a matrimonial asset, which includes, everything you or your spouse have, whether in joint or sole names, such as the family home (including any outstanding mortgage), pensions, savings, investments, shares, businesses, vehicles and jewellery. If the property is a matrimonial asset, then the starting point with be equitable division of the asset, regardless of whether the spouse was the primary earner or owns the property.

How we can help

Here at Moore Barlow, we have the expertise and experience to help you deal with whatever family law issues you may be faced with. Whether you are going through a divorce, separation, require advice regarding your children, or need a pre-nuptial or cohabitation agreement during a relationship, we are here to help.

Contact us today