The Dos and Don’ts of Property Division in a Divorce

The Dos and Don’ts of Property Division in a Divorce
The Dos and Don’ts of Property Division in a Divorce

Distinguishing one’s life from that of a spouse is a complex and emotionally charged process. One of the most challenging aspects can be dividing shared property after a separation or divorce. This comprehensive guide aims to shed light on the intricacies of property division within the United Kingdom, its related laws, methods of execution, and elements that can influence the proceedings. It serves as an overview but is no replacement for expert legal advice from a solicitor experienced in family law.

Demystifying Property Division

Property division refers to the allocation of assets between two parties post-divorce or separation. These assets might encompass everything from real estate properties (including, but not limited to, marital homes), savings and investments, businesses, pensions, vehicles, and more uniquely personal items such as pets. The objective is to ensure that these assets are divided fairly between both parties.

Pertinent Laws

The laws governing property division upon divorce vary across jurisdictions within the United Kingdom. In England and Wales, these laws are enshrined within the Matrimonial Causes Act 1973. On Scottish soil, however, they fall under the Family Law (Scotland) Act 1985. Despite these differences in legislation, both jurisdictions share a common guiding principle: fairness when dividing matrimonial assets.

It’s worth noting that there isn’t a rigid rule dictating how money and property should be apportioned between spouses during divorce proceedings. Generally speaking, though, an equal distribution forms the starting point for negotiation in England and Wales; however, individual circumstances may necessitate deviation from this principle.

The Division Process

At its core, property division involves valuing all assets accurately and equitably, which may require professional valuation services for items like real estate or businesses. Once values have been ascertained, negotiation between parties ensues. These discussions can occur directly or through solicitors representing each party.

If an agreement cannot be reached via these negotiations or through mediation (if this has been opted for pre-court proceedings), then it might become necessary to apply to court for a financial remedy order.

Deciding Factors in Property Division

The process of asset distribution is not arbitrary. Various factors are taken into account by the court when deciding how assets should be divided:

  • Child Welfare: The welfare of any children involved always takes precedence in the UK legal system.
  • Financial Contribution: The financial contribution made by each party towards acquiring properties also holds relevance, although it isn’t always decisive as non-financial contributions such as raising children or managing the home are also given their due weight.
  • Earning Capacity and Financial Needs: If one party earns less than the other, they may be allocated a larger share of the property to offset this disparity in income.
  • Age and Health: Older individuals or those with health issues may receive more assets, especially if they were financially dependent on their partner during the marriage.
  • Length of Marriage/Civil Partnership: The duration of the marriage or civil partnership can influence asset division.
  • Standard of Living: The lifestyle enjoyed during the marriage or civil partnership is another consideration.
  • Behaviour: This factor only comes into play under rare circumstances, such as instances where violence leading to physical harm has occurred.

Pensions

Pensions often constitute one of the most valuable assets within a marriage, and therefore, special mention needs to be given to how they can be divided:

  • Pension Sharing: Here, the pension pot gets split at the time of divorce, giving each party their own separate pension scheme for future use.
  • Pension Offsetting: In this scenario, one person retains the entire pension, but to balance it out, the other party is given assets worth an equivalent amount.
  • Pension attachment (or earmarking): This involves a portion of one party’s pension being paid out to their ex-spouse once they start withdrawing from it.

Marital Home

In cases where children are involved, courts often grant residency rights to the parent with custody until the youngest child turns 18 or completes full-time education. This helps ensure stability for the child/children during this period of upheaval.

Conclusion

Property division following a divorce can be a daunting and emotionally taxing process. It’s a labyrinthine task requiring care, patience and clear-headedness. The process necessitates careful deliberation on many factors by both parties involved. Expert legal advice is invaluable in ensuring a fair and equitable distribution of assets.

The most important thing for all parties to keep in mind during this process is to remain objective, open-minded and willing to negotiate. After all, successful negotiation forms the cornerstone of any equitable property division post-divorce or separation.

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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