Your property and divorce

You can own a property in 2 ways. The first is according to the Title Deeds and the second is according to your contributions to the property, this is called your "Beneficial Interest".

For example, the Title Deeds may have 2 names on the property and say that it is owned jointly, but your Beneficial Interest in the property (because of contributions you have made to the property etc.) might be held in equal or unequal shares.

If you hold the property jointly this does not automatically mean that on sale the proceeds will be divided equally. The court may have to consider also how the Beneficial Interest in the property is held. If this on a ratio of 70 / 30 for example, the court may divide the sale proceeds the same way.

There are of course other considerations which might mean that the court decides to ignore the Beneficial Interest. See Maintenance Issues.

If you hold property Jointly as "joint tenants" and your partner dies their share of the property will automatically pass to you. It does not matter that your partner has left a will expressing a wish for his or her share to go to someone else.

If you do not want your share to go automatically to your partner then you should consider asking your solicitor to "sever" the Joint Tenancy. This can be done by serving a written notice on your partner that the Joint Tenancy is severed (split). You will then hold the property as "Tenants in Common". This is still in joint shares, but it now means that if you die your share will go to whom ever you want it to pass to and you can make provisions for this in your will.

Unmarried Couples may find it better to own a property as Tenants in Common to avoid the problems of the property passing on their death to their partner or their partner's family and not members of their own family.

When you first buy a property your solicitor should ask you how you want to own the property and explain the difference between Joint Tenancy and Tenancies in Common to you.

If you are not sure how you hold the property don't worry. A solicitor can search the Land Registry for you to find out how the property is held. Details of all properties bought and sold have to be registered at HM Land Registry with details of change of ownership.

If you own property with your partner then you may need to decide what to do with the property after you separate. You may decide to sell and split the proceeds, or transfer your share to your partner, or buy out your partner's share. You could decide that you do not want to sell the property straight away and you want to stay there until the youngest child reaches 18 or finishes full-time education. You may need help from your partner to pay the mortgage, the court can order your partner to help with the mortgage payments.

The judge can decide what is to happen, so you must tell the judge what you want. You do this by preparing a statement known as an "Affidavit". You explain in your affidavit what income and savings you have and how much your expenses are. Your partner will also have to submit an Affidavit. If the case goes to court you will have to give evidence and tell the judge yourself about your financial position.

If you have not contributed financially to the home or the bills during the marriage you may still be entitled to make a claim. This is because you may have contributed in kind, for example by looking after the children so that your partner could work, or helping your partner with his or her business etc.

Even if the property is only in your partner's name you may still have a claim because the court may consider it to be "Matrimonial Property".

When deciding on what financial orders to make the court considers issues such as:

1. The length of the marriage. (if it was a short marriage you may receive less from your partner)

2. You and your partner's age (if you are still of working age then you have a better chance of earning income in the future)

3. You and your partner's needs (for example you may have enjoyed a luxurious lifestyle and seek to be maintained in a similar lifestyle after the divorce)

4. You and your partner's earning capacity (if your partner has a chance to earn more than you in the future, you may need more help from your partner)

5. The needs of the children, if the children are living with you then again you may require more help.

These are just some of the issues that the court will consider, when deciding whether to transfer ownership of the property, sell the property, make orders for maintenance or lump sum payments.

The court has the power to transfer tenancies between married couples. The person to whom the tenancy is transferred might have to pay compensation to the person who has to leave.

Maintenance Issues for you and your children

Relationships & Family Law