What happens to property after a divorce?

Working out who gets to keep a property after a divorce

What happens to your property after a divorce depends on whether:

  • You owned the property by yourself
  • You jointly owned it with your ex-spouse
  • You didn’t own the property, but lived in it with your partner as a cohabiting couple

Working out matrimonial and non-matrimonial property

Once you’ve decided to end your marriage, you, your ex-partner and your solicitors have to establish what is matrimonial property and what is not. This applies even if just one of you owned the property.

When it comes to the law, there’s still some ambiguity about working out what constitutes matrimonial property. However, the longer your marriage has been, the more likely it is that the ‘financially weaker’ spouse will be entitled to enough money or assets to allow them to be secure for the rest of their life.

It all depends on the length of the marriage – and whether the court deems it long or short. ‘Long marriages’ tend to favour both spouses, and division of money and property is more likely to be split equally.

  • If the marriage can be considered long (five years or more), any property acquired before or during the marriage will probably be considered property of the marriage – both parties could be entitled to a share.
  • If the marriage has been relatively short – this is normally judged as five years or less – if one person had assets before the marriage, it’s less likely that they would be divided between both people equally. This doesn’t mean the ‘financially weaker’ spouse would get nothing – it just means the person who owned property or assets would get a greater percentage of the assets.

Dividing your property

If you and ex can agree a fair split of any assets from your marriage, all you have to do is go to court to get approval of your agreement. This ‘consent order’ simply makes the decisions you’ve agreed to legally-binding.

Even if you don’t agree, you don’t always have to go to court - this is generally considered a last resort as it can drastically impact the cost of your divorce.

If you don’t want to go to court, a mediation service can help you both reach a compromise – and the fees should be much less.

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

Generally, the courts will try to split property equally between a divorcing couple. Known as the ‘yardstick of equality’, this is more of a broad starting point than a definite guideline.

It’s tricky to predict the final outcome of a divorce case, as the court will consider a series of different factors to try to get to an outcome that meets the needs of the couple and any children involved.

What factors will the courts look at when splitting property?

  • The income and earning potential of both parties
  • Any debts one or both parties have
  • Other property and financial resources that each party has
  • The value of property owned by the couple
  • Financial obligations or responsibilities that each spouse has
  • How old each party is
  • How long the marriage lasted
  • What each spouse contributed to the welfare of the family and/or property
  • The welfare of any children

What are my rights if I wasn’t the breadwinner, or didn’t own the property?

It’s not uncommon for one partner to give up work to look after children, or focus on keeping a home. If you’re concerned that you didn’t contribute enough money to stay in your home – for example, if you didn’t pay towards your partner’s mortgage - you can still prove your right to stay in the home if you prove you have ‘beneficial interest’.

This means you can show that you’ve paid towards living costs in other ways than directly paying the mortgage - for example, by paying bills or council tax.

In court, you’ll need to show a judge how you’ve contributed towards paying for the home - this can be difficult, so contact your nearest Citizens Advice centre before you start. An adviser can help you through the process.

If you’re married or in a civil partnership, you can register your ‘matrimonial home rights’ online. This means you’ll be told if your ex-partner tries to sell the house or steps are taken to repossess it, and you can potentially challenge this.

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