How to Ensure a Fair Property Division Settlement

How to Ensure a Fair Property Division Settlement
How to Ensure a Fair Property Division Settlement

Property division is an intricate facet of law that involves the apportionment of assets and liabilities amongst parties, predominantly during incidents such as divorce or the dissolution of a civil partnership. In the United Kingdom, this process is regulated by numerous pieces of legislation and court verdicts. This comprehensive guide endeavours to offer a detailed overview of property division under British law.

What Are Matrimonial Assets

Matrimonial assets encompass all the properties and belongings a couple acquires during their marriage or civil partnership. It’s essential to note that these assets are considered matrimonial, regardless of whose name they are registered under. These encompass not only their family home (also known as the matrimonial home) but also other real estate properties, savings, pensions, investments, joint businesses, automobiles and more.

Non-matrimonial assets generally include assets owned by one party before the marriage or assets inherited by one spouse even during the marriage, unless they have been used for mutual benefit.

Principles Guiding Property Division

The fundamental principle guiding property division in England and Wales is fairness. The court strives for an equitable and just outcome for both parties. It’s critical to understand that fairness does not necessarily translate into equal distribution; several factors determine how these assets are divided:

  • Welfare of Children: If children are involved, their welfare becomes paramount. Their housing requirements may necessitate one party retaining possession of the matrimonial home.
  • Need: The court considers each party’s financial needs going forward.
  • Earning Capacity: Each party’s earning capacity is scrutinised thoroughly; if one spouse has relinquished their career for family responsibilities, resulting in diminished earning capacity, it will be considered during property division.
  • Standard of Living During Marriage: The lifestyle maintained while married can influence asset distribution post-divorce.
  • Length of Marriage: The duration of the couple’s marriage plays a significant role too; longer marriages often result in more equal divisions.

The Process Of Property Division

The process of property division can be broadly categorised into the following steps:

  • Full Financial Disclosure: In this initial step, both parties must reveal complete details about their financial circumstances.
  • Valuation of Assets: All assets, including properties, investments, pensions and so on, are valued to assess their worth accurately.
  • Negotiation: The couple (either independently or via solicitors) starts negotiations to reach an agreement on how to divide the assets fairly.
  • Court Intervention: If a negotiated settlement isn’t achievable due to disagreements or ongoing disputes, the court intervenes and decides based on fairness and the abovementioned factors.
  • Consent Order: Once an agreement is reached between both parties, it should be written down as a ‘consent order’ by a solicitor and approved by a court to attain legally binding status.

Pension Rights: A Critical Aspect

Pensions can sometimes be the most significant asset in a marriage, making them complex to handle during property division. In England and Wales, there are three methods by which pensions can be divided:

  • Pension Sharing: This allows for immediate separation of pension benefits; each party establishes its own pension pot going forward. It’s a clean-break option and gives each party complete control over their share.
  • Pension Offsetting: One party retains their entire pension while the other receives a proportionally larger share of other assets to balance it out.
  • Pension Attachment Orders (Earmarking): In this case, a part of one party’s pension is marked out for the other upon retirement. This method does not create separate pots; the person with the pension can choose when to retire.

Property Division In Co-habitation

For unmarried couples who have been living together but decide to part ways, their rights are less clear-cut than those of married couples or civil partners under UK law. They don’t automatically have claims on a property unless they share ownership or have a legal agreement stipulating otherwise.

Conclusion

Due to associated issues like child custody, property division can be multi-faceted and emotionally charged. It’s crucial to seek professional legal advice from experts who fully comprehend family law to safeguard your interests during this complex process.

Remember that every case is distinctive; what worked for one couple may not be suitable for another due to varying circumstances surrounding their financial state, length of marriage or relationship, etc.; hence, always consult an experienced solicitor before making any decisions.

This guide serves as a general overview and does not offer definitive advice for your individual situation. It’s always recommended to consult with a legal professional when dealing with matters as intricate as property division.

Avatar of DLS Solicitors by DLS Solicitors
19th May 2024
Avatar of DLS Solicitors
DLS Solicitors

Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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