When a marriage ends, the divorce process can be an intricate one, particularly when it comes to a division of assets. Your home is usually the biggest of those assets, but it is not always about splitting the value of a house down the middle.
There can be endless debates surrounding who lives in the property and what financial share each party might be entitled to. That is why it is important to understand what happens to your property during a divorce so that you know what to expect.
There are a number of factors that can have an effect on the outcome of the property during the divorce, these are; whether or not you owned the property by your self or jointly owned it with your spouse, or whether you didn’t own the property but lived in it with your partner as a cohabiting couple.
The proceedings may be different depending on whether you and your ex-spouse owned or rather rented the property that you lived in.
What is Matrimonial Property
It can sometimes be hard to distinguish what is classed as matrimonial property and what can be attributed to just one person. The longer the marriage has been, the more likely it is that property will be seen as an equal split.
A long marriage is considered to be one which has lasted five years or more and any property acquired either before or during that marriage will be considered matrimonial property and both parties will therefore be entitled to a share.
In a marriage that has lasted a shorter amount of time it is less likely that property will be divided equally if one person had assets prior to the marriage, however, the other spouse may still be entitled to a small percentage.
Unless a Prenuptial Agreement states otherwise, each partner has a legal right to live in the family home, even if their name is not on the deeds or mortgage. The usual course of action in the case of a divorce is to sell the property and divide the equity, allow one person to buy the other out, leave one partner living in the property with a view to selling in the future, transferring the value of the property into one person’s name while the other gets alternative assets, or part of the value is transferred to the partner who is staying in the property while the other keeps an interest and will receive equity when it is sold.
Division in Court
If you are able to agree a fair split of assets with your ex, you will only need to go to court to obtain a consent order which will then make it legally binding. If it is more difficult to come to an agreement, a mediation service should be the first port of call before resorting to court.
The courts will usually try to split property equally, but this does not mean that a final outcome can be easily predicted, as there are a number of factors that will need to be taken into consideration. These include whether any children are involved, the income and earning potential of both parties as well as any debts that either one might hold.
The courts will also look at the value of the property held by the couple in addition to any other financial resources and obligations. The age of each party and the length of the marriage is also taken into account, and courts will also assess the contribution of each spouse to the welfare of the family and the welfare of any children.
If you were not working during the marriage, for example, to bring up children, then it is still possible to prove that you have a right to stay in the home despite not having contributed to the mortgage payments if you feel you have a ‘beneficial interest’. This is usually because you can show that you have contributed towards paying for the home in other ways, such as through paying bills.
A divorce is one of the most stressful and painful events that you can go through in life, so understanding what will happen is important in order to minimise the worry and upset that can occur. To help with this, you can register your matrimonial home rights online, provided that you were married or in a civil partnership. Doing this will allow you to be notified if your ex-partner tries to sell the family home or steps are being taken to repossess it. If this occurs, then you may be able to challenge these actions.
If you weren’t the breadwinner in the relationship, you still have the right to the property. As mentioned before, if you can provide evidence of other ways that you have contributed to living costs, other than paying the mortgage, in court then you may be able to claim the right to live in the home. This can be a difficult process, so it is recommended that you contact your solicitor or speak with citizens advice before proceeding.
This article was brought to you by Kerry Smith. Kerry Smith is the Head of Family Law at K J Smith Solicitors. K J Smith Solicitors are experienced family solicitors in the Thames Valley area specialising in family mediation, estate planning, and divorce and separation.