One of greatest sources of anxiety in a divorce is the division of property. Who will get the house? If you have children you may well wish to minimise the disruption they experience by ensuring they can remain in the family home.
The process of deciding what will happen with any property begins at home. if you come to an agreement with your ex-partner and you can avoid large legal fees. You should obtain legal advice though so that you are aware of your legal entitlements and obligations before the agreement becomes legally enforceable. The agreement has to be incorporated into a Consent Order and lodged at Court; this is usually dealt with by a solicitor. This Order submitted to the court to be approved by the judge after the decree nisi.
If you cannot agree
Following recent reforms anyone seeking a court order to resolve a dispute over splitting property should attend a mediation information and assessment meeting before making an application to Court for a contested hearing. The only exception to this is divorce cases with evidence of domestic violence.
Mediation is a way for couples to agree a way forward with the help of an independent and impartial third party, who facilitates the negotiations and can help manage the process. Again, f you can agree a solution with a mediator then you may apply for a ‘consent order’ to make it legally binding If you cannot reach an agreement, you must apply for a financial order and let the court decide.
This process is separate from the divorce, may involve a number of court hearings and could take between six to 12 months.
How the courts make a decision
There are no set rules on splitting assets, but the court will always aim for an outcome which meets the needs of both spouses and any children.
The process starts by identifying and valuing all marital assets, including any properties. It is vital that you are transparent in revealing all your assets at an early stage. If it is discovered during the case that you are deliberately concealing things, you may end up with less money than you would otherwise have been entitled, or even charged with contempt of court.
Factors which will influence the judge’s decision regarding division of assets include how long the couple have been married or in a civil partnership, the ages of the parties and their ability to earn, as well as their role in the relationship (i.e. chief earner or stay at home parent).
Arrangements for children will be given priority, setting out their housing arrangements and child maintenance payments.
When it comes to the marital home, both parties will usually receive a share regardless of whose name it is in. If you can’t agree upon the value of your home, the court will order a market valuation from a local estate agent or surveyor.
In cases where one party wishes to remain in the home, options include one spouse buying the other out, one spouse agreeing to accept other assets in return for their share of the home or agreeing to defer payment until the property is sold at a later date (i.e. when the children move out).
It is worth noting that where property is owned overseas there may be significant delay and complication. Even if the assets are declared and form part of a financial order, it can be difficult and costly to enforce the order outside of the UK.
A fair outcome
It is important to remember that the judge will aim for a ‘fair’ outcome for everyone involved. Fairness is to some extent subjective however and this means that outcomes are sometimes difficult to predict.
This article is intended as an easy to understand introduction to some aspects of divorce, free of legal jargon. However, divorce is a complex, and unfortunately sometimes non-intuitive area of law. Please contact us for more specific advice about your individual circumstances and the legal processes which apply.
Contact Jane McDonagh