Everything you need to know about property and divorce

It can feel overwhelming to think about property when going through divorce. You might be worried about who will stay in the family home, or how you’ll afford it if you need to move out.

The tips below are a good place to start and will hopefully save you time, money, and stress further on in your divorce.

Before we start, it’s important to remember that in the eyes of the law, if you are married or in a civil partnership, the property you own is usually considered joint, no matter whose name the deeds are in, or who is on the mortgage.

For married couples, the matrimonial home is given special status in court proceedings, and not being named on the title deeds does not negate your entitlement to a share in its value. You can register your 'matrimonial home rights' online, and you can apply for a Matrimonial Homes Rights notice even if you are not on the mortgage.

Learn more about property and joint ownership during and after divorce.

Explore the options for where you’re going to live during the divorce or separation

A place to start is for you and your ex to discuss the following:

Where will you both live when you separate?

What will happen to the family home? (Sold? One of you lives in it? Rented out?)

Will one of you remain in the family home or will you sell the property and split the equity? Equity is the difference between the actual property value and any mortgage and/or selling costs such as estate agent and conveyancing solicitor fees.

If you decide to sell, the equity is often split equally, but this can depend on individual circumstances such as who owned the property before the marriage and the needs of any children. If you wish to retain the family home, you may need to buy your ex partner out, which requires demonstrating to the mortgage company that you can afford to pay the mortgage on your own.

If you are selling the property and splitting the equity, how will you decide what percentage you will each need? The court generally starts from the position that assets should be split equally, but may decide otherwise based on factors such as the needs of any children, the length of the marriage, or specific financial contributions. If one spouse wants to sell and the other does not agree, the court has the power to make an order for sale of jointly owned property. The court can also make an 'order for sale' if one spouse wants to stay in the property but the other does not agree.

If you have children, you'll need to agree on their arrangements. How will the children split their time between you? If travel is involved, how near to each other and school will you need to live so the children don’t spend huge amounts of time to-ing and fro-ing between homes?

Can you afford to buy/rent in the area you’d like to live? If not, what is your plan b? Consider your ability to pay ongoing mortgage payments or other financial responsibilities, as this will affect your options and any agreements with your ex partner.

Types of property in a divorce

When you're going through a divorce or dissolving your civil partnership, understanding the different types of property is absolutely crucial if you want to reach a fair financial settlement. In the UK, we split property into two main buckets: matrimonial property and non-matrimonial property.

Matrimonial property

Matrimonial property can also be called marital assets, and refers to anything you and your partner acquired together during your marriage. This includes your family home, any other properties you’ve bought, any savings you've built up, investments, and pensions. They're usually the starting point when it comes to dividing things up. The goal is often to split them fairly down the middle, though what happens in your case will depend on your specific circumstances. Alternatively, one of you may wish to buy the other out.

Non-matrimonial property

Non-matrimonial property is property that one of you owned before you got married, or things you received as inheritance during the marriage. The court can still consider these in your financial agreement if they need to make sure both of you and any children have enough money and resources to get by.

The court will look at lots of different factors when they're working out how to divide your property fairly. They'll consider how long you were married, what each of you contributed financially and non-financially (like if one of you put more money towards the family home or spent years looking after the kids), and what both of you and any children actually need. Sometimes, one partner might end up with a bigger slice of the matrimonial assets if they need more financial support or if they contributed more to what you built together during the marriage.

Even if the family home or other property is legally in one person's name, the other spouse might still have a legal interest in it. You can register this interest with the Land Registry to protect yourself, especially if you're worried about the property being sold or transferred behind your back.

You'll need to be completely open about all your financial assets,: hat means both matrimonial and non-matrimonial property. Trying to hide assets or not being honest about what you have can land you in serious legal trouble and might affect the final financial order.

Given how complicated property division can get and how much your personal situation matters, it's really smart to get advice from a Divorce Specialist. An initial chat can help you understand your rights, figure out exactly what legal interest you have in a property, and work out the best way to reach a legally binding agreement.

Gather the information on all your property

The important facts and figures to gather on all the properties are:

• The value of any property
• Whether it is owned outright or not. If it’s not owned outright, what mortgage remains?
• Are there any early repayment penalties on the mortgage?
• Whose name is the property in? If a property is owned solely by one person, or if a spouse owns the property before marriage, it is typically considered a non-matrimonial asset. If it’s in joint names, find out whether you are ‘Joint Tenants’ or ‘Tenants in Common’
• The costs associated with selling or transferring the deeds of any property
• Any Stamp Duty and or Capital Gains Tax implications When gathering information, make sure to include any property owned before marriage. Full financial disclosure is required by the UK family court, including any pre-marital assets owned by either person. Both parties must provide full financial disclosure before dividing assets in a divorce.

The legal aspects of dealing with property

You will need to get support if you’re selling/transferring property during your divorce. Below is a list of the specialists you may need to get involved:

• Conveyancing solicitor – if you’re selling the property or if you’re transferring the name on the deeds
• Mortgage advisor
• An estate agent if you need help with buying or selling
• A tax advisor if you’re unsure of the tax implications i.e. Capital Gains Tax and divorce
• A consent order specialist If you have property and you’re getting divorced, it’s important to know that your divorce or dissolution will not end your financial relationship. To do this you’ll need to get a consent order finalised through the courts while you’re divorcing.

The purpose of a consent order is to legalise any financial arrangements you have made between you. A consent order is also the only document that will end the possibility of future financial claims against you. It is the most secure way to fairly divide any property, and divorce can be a lot less stressful when you know you’re protecting yourself from potential future claims.

Learn more about how to get a consent order.

If you need help dealing with property during your divorce, book a free 15-minute call with one of our experts.

FAQs

Who gets the house in a divorce UK?

In the UK, determining who gets the house in a divorce involves complex considerations, including the financial and housing needs of each person, contributions to the property, welfare of any children, and overall financial circumstances.

How do I find affordable housing after divorce if I can no longer cohabit with my ex?

Finding affordable housing after a divorce can be a challenging task, but there are steps you can take to help you secure suitable and affordable living arrangements. This includes assessing your finances and budget, looking in more affordable areas, and looking for short-term solutions during your search.

Do you lose your rights if you leave the family home?

No, leaving the family home doesn’t affect your rights or the outcome of your financial agreements post-divorce.