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Property and Divorce

With property and divorce, everyone focuses on the family home. It is understandable that the first question is “will I keep the family home?”

After all, it is where you live and you may not want to give it up because of the memories it holds, its location near the children’s school or because it is too difficult to do so at the same time as going through a relationship breakdown.

OTS Solicitors and the family home

If you or your spouse are thinking about separating or starting divorce proceedings, it is important to get advice from London divorce solicitors on the best financial settlement solutions.

To speak to a member of the London based OTS Solicitors divorce team about property, financial settlements and divorce proceedings call us on 0203 959 9123 for a discussion about how we can help you. Alternatively, contact us through our online enquiry form.

The family home

The family home is not just the main property asset of most divorcing couples, it is also the most emotive asset, either because of its memories and association with happier times or the fact that one spouse paid more towards the deposit, or owned the family home before the marriage.

Some divorce solicitors refer to the property as the “former matrimonial home”, making a relationship breakdown and the split of property on divorce sound rather cold and clinical. Whilst the focus should be on securing the best financial settlement and sorting out the future ownership or the sale of the family home, it is important for divorce solicitors to acknowledge the sensitivities of making decisions about what should happen to the family home.

Property steps and divorce

When it comes to property and the family home, some divorcing couples find it hard to know where to start. That can be because they are so busy working, looking after the children, or because deciding what should happen to the family home makes the separation and divorce seem final. The best way to sort out the family home and property on divorce is to:

  1. Look at who owns the family home and property. That may be obvious to many but sometimes a property is owned in the sole name of a husband or wife. A divorce solicitor can check out the legal ownership, and if the family home or property is owned in one spouse’s sole name, they can protect the non-owning spouse’s interests with the land registry. If the family home is jointly owned, a divorce solicitor can advise, if relevant, on severing the joint tenancy as it may be in your best interests to do so;
  2. Think about the bills on the family home. Is there a mortgage or a second charge on the family home? Is the mortgage linked to an endowment policy? If you do not know this information, a divorce solicitor can find it out for you. If there is a mortgage, is it being paid? If you cannot reach an agreement on who pays the mortgage and bills on the family home then a divorce solicitor can advise on the best way to resolve matters, including applying, if relevant, for child support or spousal maintenance;
  3. Who is going to stay in the family home until a long-term financial settlement is reached? It may be necessary for you to both stay at the family home or, if there are domestic violence concerns, one of you may need advice on applying for a non-molestation or occupation order. A divorce solicitor always recommends taking legal advice before leaving the family home as it may not be in your best financial interests to do so until a financial settlement is reached;
  4. Valuing the family home. Whether you hope to stay in the family home or know that you want to sell it, it will be necessary to find out how much the property is worth. Estate agents can be asked to carry out market appraisals to give you an idea of the best way forward or you can ask a surveyor to value the property. It is sensible to speak to your spouse and to a divorce solicitor about how best to get the family home valued before asking estate agents for appraisals or paying for a valuation report;
  5. Financial settlement and the family home. Once you know how much the property is worth, and after full financial disclosure has taken place about the value of all the other assets and pensions, and you know how much is outstanding on the mortgage (if relevant), your divorce solicitor can look at your best options. The decision to sell or stay in the family home may come down to the cost of downsizing or the affordability of being able to take over the mortgage;
  6. Financial and mortgage advice. The likelihood is that if you have a mortgage on the family home, you will need some financial and mortgage advice so you know how much you can borrow to stay at the family home or move, based on your income and taking into account any child support and spousal maintenance paid or received;
  7. Your divorce solicitor and the legal paperwork. If you are able to reach an agreement on whether the family home should be sold or transferred, then your divorce solicitor will be able to sort out the necessary legal paperwork for you. If agreement cannot be reached, a family judge in financial settlement court proceedings can order the sale or transfer of the family home and make a financial court order.

The divorce court and the family home

It is always sensible to have information about what a divorce court could decide to do about property and the family home so that you know the potential outcomes if you or your spouse were to start financial court proceedings. That will help you and your London divorce solicitor negotiate the best financial settlement for you.

The court looks at all your circumstances when deciding if the family home should be sold or transferred, and could order:

  • The sale of the family home or other property. The equity in the property will not necessarily be divided equally by a court. Much depends on income and housing needs as well as other factors;
  • The transfer of the family home from joint names into the sole name of the husband or wife. The spouse who is receiving the property could be ordered to pay the other spouse a cash payment or the other spouse could receive all or more of other family assets, such as a second holiday home, buy to let property portfolio, family business or pension;
  • The transfer of the family home or property owned in the sole name of one spouse to the other spouse;
  • The continued ownership of the family home in joint names with one spouse having the right to live at the family home until a specified date, for example, the date of the youngest child reaching the age of eighteen. As part of the financial court order, the family home would then be sold and the net proceeds divided in the percentages ordered by the judge.

OTS divorce and financial settlement solicitors 

For expert legal advice on the family home, property and divorce, contact OTS London divorce solicitors on 0203 959 9123 for a discussion about how the divorce and financial settlement team can help you. Alternatively, contact us through the online enquiry form.

Your Questions and our answers about Property and Divorce

Thank you for your enquiry.

You may need to start financial court proceedings so that there is a court timetable in place to help you reach a financial settlement, and if you cannot reach an agreement, a judge can make a financial court order.

If you have what is known as a beneficial interest in the buy to let property you could warn any potential purchasers of your potential beneficial interest in the property by registering your interest with the land registry. If you do not have a legal or beneficial interest in the property, you still have a financial claim because of your marriage to your husband.

If you think that your husband is going to sell or dispose of the buy to let property in order to defeat your financial claim then you could apply for what is called a section 37 injunction order. This application may not be necessary if there is other secured money that will satisfy your financial claims, such as the equity in the family home or savings.

Another option would be to agree that your husband should sell the buy to let property and for your husband to agree that the proceeds of sale of the property should be retained by his solicitor until you have reached an agreement with your husband or a judge makes a financial court order.

You do need family law advice on starting financial court proceedings and applying for a section 37-injunction order. We would therefore ask you to call us on 0203 959 9123 to arrange an appointment to discuss how we can help you. Please call us.

Family law team OTS Solicitors

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