One of the biggest hurdles to overcome when you get divorced is deciding how to deal with any shared property. Who gets the house? Or do you sell it and split the assets?
Things can become even more complicated if you have children – perhaps you’re eager to stay in your family home to retain a sense of normality through your separation, while your partner wants to push for a quick sale. The first port of call for any couple planning a divorce is to consult an experienced family law solicitor or divorce lawyer who will be able to help you to work through dividing up your assets step by step.
As you enter into divorce proceedings your assets will be valued – including any property you own – and, according to the method of separation you have chosen, a decision will be made regarding how to divide them up. Most people assume that the default division is 50:50 but there are a number of different factors and elements that affect the outcome, including your financial situation, whether you have children or dependents, and the circumstances of your separation. There’s always an emphasis on fairness as much as possible, especially if there are children involved, and the best thing you can do to speed the process up is to try to come to a positive agreement with your spouse. If you choose a process of mediation, collaborative family law, or arbitration, you’ll be able to settle these decisions with your partner and your solicitor out of court, allowing you a greater measure of control over the final outcome.
Dividing up property in a divorce is not simply dependent on the person whose name is on the property deeds – as a married couple, you both have the right to remain in the marital home, and there’s no single ‘right’ way to resolve this aspect of divorce. One party could buy the other out in order to keep the house, while the other party receiving other assets to create an even settlement. This is often a good way to ensure that one parent is able to stay in the family home with the children. Another option – if there are not adequate finances to make up the shortfall – is for the partner remaining in the house to pass on the assets in the future, for example by selling the house if they re-marry, or when the children have moved out. Of course, these are personal and individual decisions that greatly depend on your situation as a separating couple, so the best thing to do is to discuss your circumstances with your solicitor before you make any plans.
If the house is in your spouse’s name but not in yours, it’s a good idea to protect your position if you are experiencing a marriage breakdown and are not sure of your partner’s intentions for the property. Entering into a Notice of Home Rights with the Land Registry will prevent your partner from selling the house while you’re still married and will ensure that it remains part of your shared assets through your divorce proceedings.
If you decide to sell your home, one of the obvious downsides is the fact that you’ll be at the mercy of the unpredictable property market, especially if you’re not in complete agreement about the sale, or are hoping for a higher price than you are able to currently get. Selling a property can take a long time, so if you’re looking for a quick fix for your divorce this may not be your best option. On the other hand, if you’re happy to wait for the right deal, selling your home can simplify the division of your assets and leave you both with a lump sum.
It’s useful to get the advice and experience of a divorce solicitor who also deals with property law, as they will be able to give you extra insight into the current property market and help you to negotiate the details of your property situation.
Frances Lindsay & Co Soclitors
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to frances lindsay directly.
Published on 7th November 2013
(Last updated 28th March 2018)