Home sweet hell – divorce and property division

Anyone who has travelled through Wilmslow train station recently may have noticed the large poster with an image of “Home Sweet Hell” produced by the Law Society to direct the public to seek legal advice on conveyancing matters and to highlight the importance of carrying out proper searches at the time of purchase. A new blog is born: Home sweet hell – divorce and property division

But what if it is not the property which is causing problems? What if the difficulties are within your home?

James Maguire & Co advise clients that one of their first considerations, if they are thinking about a divorce, is to establish what will happen to the family home. No two cases are the same and for each client we have to advise not just on the issues relating to the house, but also their financial circumstances in general.

In this blog, we set out what options there are for dealing with property upon divorce and the factors that we take into account in advising our client’s on the likely outcome in their case.

What are the options?

On divorce, there are two main options available:

1. Sell the property; or

2. Transfer the property to one party’s sole name.

In most cases, the parties will look to resolve the property issues straight away. However there is sometimes the option (in the right circumstances) for the sale of the property to be postponed.

Selling the property

For some people, selling the property means uprooting them, and any children, from their family home to which they have significant emotional ties. For others, it is a welcome opportunity to move on and start afresh. Deciding what should happen to the property can be quite an emotional issue; however our role as family law solicitors is to advise you on the legal and practical matters.

If the property is to be sold, then the parties will need to agree how the proceeds of sale should be divided. It is usual that all the costs associated with the sale (i.e. the conveyancing costs and the estate agent fees) should be met out of the proceeds of sale, and any mortgage secured upon the property will also need to be repaid.

For more information on selling your home, please click here

Transferring the property to one party

The family home may be owned by both parties or it could be in one party’s sole name. As part of the divorce, it can be agreed that the property be transferred from joint names to one party’s sole name or from one party to the other. The fact that the property was registered in one person’s sole name does not necessarily mean it will stay that way.

As part of the transfer, the parties need to consider whether payment needs to be made by the person receiving the property to the other party to “buy out” their share. In this respect, the family home cannot be looked at in isolation. For some couples, there is a trade-off between the family home and other assets, such as savings, business interest and pension assets. For others, the equity in the house will be shared alongside the other assets.

What if neither of those options suit us now?

For some people, selling the family home may realise such little equity that it would cause difficulties for the parties to rehouse. Others agree that their priority is to provide stability and security for the children and therefore want to delay doing anything with the house.

In those circumstances, the parties can agree or the court can order that the property be held in joint names and specify that one party can live in the property until it is sold. What the parties do have to agree is what will trigger the property to be sold. Usual “triggering events” include the occupying person dying, remarrying or choosing to leave the property; or the youngest child reaching 18 or ceasing full time education.

The parties will still need to decide how the eventual sale proceeds should be divided and may want to consider whether there should be an option for the person who has remained in the property to buy out the other party’s share at a later stage.

What will happen in my case?

Family law is a very discretionary area and no two cases are the same. What happens to the house will very much depend on the context of any other assets which you may have and whether there are children.

When Maguire Family Law advise clients, we always make reference to the principles which would be applied by the courts in the event that a judge had to decide the case. These are known as the Section 25 factors, in reference to Section 25 of the Matrimonial Causes Act 1973.

Those factors are:

• The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.

• The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.

• The standard of living enjoyed by the family enjoyed before the breakdown of the marriage.

• The age of each party to the marriage and the duration of the marriage.

• Any physical or mental disability of either party to the marriage.

• The contributions of which each of the parties has made or is likely to make in the foreseeable future.

• The conduct of each of the parties (which has to be quite significant and is rarely taken into account).

The first consideration is always the welfare of any minor child who has not attained the age of 18.

What should I do if I am thinking of getting divorced?

As family law solicitors, we always advise that the parties seek independent legal advice at an early stage so as to fully understand their individual options and the process which is involved.

That said, if parties have already discussed matters direct and simply seek assistance from James Maguire & Co in formalising their agreement, then we can help with that process too, setting out the legal formalities which need to be complied with.