How do we decide who gets the house?
Arranging the division of assets, and especially property, can be stressful. There are so many other things to think about, such as looking after children and adjusting to the new situation. It’s hard to know where to begin.
That’s why it’s important to get expert legal advice early on so you can navigate the complexities as best you can and start putting your affairs in order.
These are the steps to take to sort out property in a divorce:
- First check who legally owns the home
This might be obvious, but it’s important to identify the legal owner. If the property is in one person’s name only, we can advise you on how to protect your right to stay in the home until the final settlement is made.
- Identify bills on the property
Work out any liabilities connected to the property and find out who is responsible for them. Does the property have a mortgage or a second charge on it? Is there an endowment policy on the mortgage?
Even if you move out of the family home, if your name is on the mortgage, you will still be obliged to make the monthly payments if your partner stops paying. Your home will be at risk of arrears or possible repossession if any mortgage or secured loan is not paid each month.
- Decide who will live there until the settlement is reached
Sometimes, when people separate, one person decides early on to move out so the couple can start their new lives apart. It is important to take independent legal advice before this happens as there are implications to consider.
If there’s no tension between you, it may be possible for you both to remain living together until a final resolution is achieved. On the other hand, you might need help getting an order to grant you the right to remain in the property, particularly if there are issues or problems with you both living together.
- Determine the true value of the property
Whether you plan to keep the house or sell it, you’ll need to know its value. An estate agent can give you a market appraisal and you can obtain a valuation report from a surveyor. The housing market tends to fluctuate so it’s important to get expert advice before moving forward. Your family law solicitor can point you in the right direction.
- Seek financial and mortgage advice
If you have a mortgage, it’s important to take out independent financial and mortgage advice, as well as legal advice, when going through the financial settlement. Many divorcing couples will have a joint mortgage. In some cases as part of a financial settlement order the mortgage might be transferred from joint names into just one party's name. It is important to get financial advice about your mortgage capacity at the outset to better understand what your options are.
- Think about your best option
Once you’ve identified the legal owner, obtained the most accurate current valuation of the home, fully disclosed all other assets, and checked the outstanding balance on the mortgage you can talk to your family law solicitor about the best way to deal with your home as part of the financial settlement. We can also help you gather all of this information together so we can give you the best advice possible.
- Sort out paperwork
If you and your ex-partner can mutually reach an agreement on how to divide assets, then your family solicitor can draft the necessary paperwork and obtain a financial consent order. You might need some help from a solicitor or mediator to support you in reaching a mutual agreement. If you can’t agree, you may apply to the court and your case will go to a family court judge. They could order the sale or transfer of the marital home and finalise proceedings with a court order, however this should always be considered a last resort.
If you’re thinking about divorce or already separated and want to finalise the financial side of things get in touch with Rowlinsons today. You’ll get professional, expert legal advice to ensure you’re fully informed and equipped to achieve the best outcome.
What is a Mesher Order?
A Mesher Order, or Order For Deferred Sale, is a court order which can be obtained to postpone the sale of the family home until a specific trigger event. This means that one spouse can continue to stay in the house for a length of time, which may or may not be predictable. Some of the common events that can be used to define the deadline of a Mesher Order include:
- The children moving out of the home, or turning 18
- The death, re-marriage, or cohabitation of the occupying spouse with a new partner
- A specific date agreed by both parties
One party may decide to apply for a Mesher Order if they wish to live in the family home with the children, but do not have the stability or financial resources to take over the mortgage as a sole contributor. The other spouse will stay on the mortgage, but may not be required to contribute towards the repayments.
A couple may also benefit from a Mesher Order if they want to avoid going through a property sale at the same time as a divorce, which often proves to be a stressful process. If the property is in an area with rising prices, or in negative equity, both parties may also decide to postpone selling the house until it is more financially convenient.
However, a Mesher Order can create uncertainty for the spouse staying in the matrimonial home, and may not be your best long term solution if you want to avoid contact after ending the marriage. Our Property Divorce Solicitors can advise you about your best options moving forwards.
How is other property dealt with in a Divorce?
Besides the marital home, you may own other property either jointly or separately. Anything accrued during your marriage will be considered a marital asset even if it’s owned in your name. However, that doesn’t necessarily mean that the property you bought before you got married will be discounted. The court has a significant amount of freedom when determining what to consider as part of the financial settlement and can use its discretion to include non-matrimonial property.
Get legal advice early on to find out if you can create a postnuptial agreement to try and ring-fence any assets you want to protect. Although prenups and post-nuptial agreements are not completely legally binding if you took out adequate legal advice at the time of drafting the court should seriously consider the agreement.
If I want to gift property to a family member, can it still be included in the financial settlement?
Potentially, yes it can. If you transfer property to a relative before you separate or start divorce proceedings, your ex-spouse may challenge this and make a case for the court to include it, which the court has the power to do.
Even though your gift is genuine, the transfer of assets before or during proceedings could be seen as trying to reduce the available assets and attempting to defeat a financial claim.
If you’re considering gifting property, it’s best to obtain legal advice before making the transfer.
What if I think my ex-partner is trying to hide assets?
On the other hand, you may be worried about your ex-partner attempting to defeat your claim by transferring property to a third-party family member or even selling it so you don’t get your share of the equity. Your family law solicitor will tell you what precautions to take to secure your share of the equity in the property.
Family Law Team on Your Side
Going through divorce proceedings and the financial settlement isn’t easy but we’ll help you make it as amicable and straightforward as possible. With Rowlinsons by your side, you can sort out your financial assets, explore your options, and determine what could realistically be included in your financial settlement. You’ll get expert advice tailored to your needs so you can achieve the fairest outcome and make a fresh start after divorce.
Contact Our Property And Divorce Solicitors
Rowlinsons Solicitors can help you reach the best outcome and protect your interests in a divorce or separation. Our specialists are accredited members of the Law Society's Family Law panel. Our team is approachable, friendly and professional.
We always aim to achieve amicable resolutions swiftly. However, when litigation is necessary, we have the experience and know-how to deal with the courts effectively
By choosing Rowlinsons for advice regarding your property during a divorce, you are assured of having the best legal expertise from expert Financial Settlement Solicitors. We are committed to providing exceptional levels of client care and will work closely and considerately with you to help find the best outcomes.
With expert Family Law & Divorce Solicitors based in our Runcorn and Frodsham offices, we are recognised as one of the leading teams of Divorce Solicitors in Cheshire. We regularly help clients throughout the Northwest region including St Helens, Widnes, Warrington, Chester, and Northwich. We are able to act for clients right across England and Wales, so talk to our team today.
Call us today for an initial no obligation call or click here for a call back. We also have meeting facilities in North Wales for Family Law clients.