Property on Divorce Solicitors.

The answer to this question depends on more than simply the monetary value of the property. Often, there will be practical considerations which need to be taken into account, and which need to be weighed against purely financial calculations.

For example, if children from the relationship are attending school in the local area, it might be impractical to sell the property and relocate, certainly for a period of time. There are a range of factors which may outweigh the financial benefits of selling immediately. You need expert advice to navigate decisions about the relevant weight which should be placed on these needs and requirements, and how they should be factored into the negotiation of your case.

We have the experience and empathy to support and guide you so that you hopefully achieve a settlement which properly satisfies your wishes and ensures your long-term financial security.

1. Check who owns the property – not all properties are held in joint names. If your property is in the sole name of your former partner, we can protect your interest in the property with the Land Registry.
2. Calculate the costs associated with owning the property – you need to know the details of any mortgages or charges over the property. A mortgage in joint names makes both parties responsible for repayment, meaning that the mortgage provider can require either one of you to repay if the other stops paying. You need to agree with your partner how any mortgages will be settled.
3. Decide who will live in the property during the divorce process – if you cannot reach agreement on who will live in the property, and you are concerned about your position, you should take legal advice before moving out of the property, as that can have consequences for your financial settlement.
4. Accurately value your property – estate agents and surveyors can give accurate valuations.
5. Incorporate the property into your financial discussions – once you know the value of the property and the costs associated with it, you can make an informed decision about how, or when, to divide the property between you and your former partner.

What you choose to do with your property will always depend on your circumstances, but the main options the court has if it must make a judgment on a financial claim are:

• Sell the property and split the money – the proceeds from the sale of the property do not have to be split equally. The reasonable expectations about living arrangements of each party should be considered, as well as each party’s earning capacity currently and in the foreseeable future.
• One party buys out the other, taking full ownership of the property – this process could involve a cash payment, or the allocation of other assets in the matrimonial pot to the party being bought out.
• Part of the property value is transferred, leaving one party with full ownership, and the other with a right to a share of any sale proceeds at a later specified date – circumstances might make this practical, but you would need to deal with your former partner at that future point.
• Both parties continue to legally own the property, although only one person remains living there – if you remain on good terms with your former partner, this can be an option if you are not able to buy them out at the time of your divorce. However, it does not create a clean break. You would need to resolve ownership issues (if not specified in the order) at some future time. This can store up a host of problems, including tax and unexpected inheritance complications.
• An order is made that the property will be sold at some future date (often when all dependent children leave home) – this becomes part of the court order, so you are legally required to sell the property when the specified event occurs. The proceeds of the sale can be split as agreed, or as the court decides.

As mentioned, a joint mortgage means that the lender can approach either party for repayment – you are both individually responsible for the entire sum. Therefore, should your partner stop paying, the mortgage provider can hold you responsible for all repayments.

If the property is sold, and the mortgage paid off, no issues are raised. Where the property is not sold, the consent of both parties to the joint mortgage, and the approval of the lender, is required to transfer it into a sole name. We will support you if you require signposting for any mortgage or financial advice due to these changed circumstances.

An often contentious element of a financial case is gifts of property to family members made before or during divorce proceedings. Even if such a gift was made entirely honestly, it can be seen as an attempt to reduce the total value of the matrimonial assets, or to protect an asset by placing it beyond the reach of a claim on divorce.

It is certainly possible to give property as a gift, even during or shortly prior to divorce proceedings, but there are certain things to keep in mind:

• Take legal advice – this is good advice before making a large gift at any time.
• Make the gift openly with the knowledge and consent of your partner.
• Keep a record of that agreement – this agreement could be challenged, but it will be treated as strong evidence that you acted honestly.
• Sign a post nuptial agreement – such an agreement can be as specific or as wide-ranging as required. It is a sensible idea to sign a post nuptial agreement if your financial circumstances change significantly post-marriage, regardless of whether you are contemplating separation.