Divorce is not something to which any one person aspires. It is, unfortunately, an unavoidable reality for many, in spite of the best intentions with which the vast majority of marriages are formed. Sticky enough as divorce can be to navigate emotionally, it gets stickier still with respect to the division of assets – particularly property. Before we proceed with specific information and advice in this tough field, it is first important that you fully understand the complexity of the topic at hand.
Legal Advice is Essential
Having co-ordinated the purchase of a home, or even a string of homes, with your soon-to-be-ex-spouse, you will already be aware of the complexities inherent to buying and selling property. You will also know the value of experienced legal representation in the completion of your homes’ purchase or sale.
The exact same principle applies to the dissolution of a marriage. Marriages themselves are complex things, let alone the intermingling of assets and the joint-ownership of such important assets as a home. In order to ensure your interests are represented properly as you proceed, you ought to choose your counsel carefully. This means taking your time in choosing your solicitor, and being completely transparent with them as to your hopes, intentions and asset history.
Property Ownership
Firstly, let’s address the nature in which you and your spouse own your property. During the purchasing process, you will have been presented two options: joint tenancy, and tenancy in common. The former describes the two of you buying the entirety of the house as a joint enterprise, meaning you each own 50% of the property regardless how much money was initially contributed by each of you. The latter, meanwhile, describes a formal agreement that each party owns a specific portion of the property.
The vast majority of family-owned properties are bought as joint tenancies, but you may have organised a tenancy in common if one of you had significantly less money to contribute, and wanted proportional ownership. The differences between these two options can change how the division of your familial assets is conducted.
What are the Options?
In the event that you and your soon-to-be-ex have a tenancy in common, it will be far easier for you to split the property in accordance with the proportions stated in the agreement; this kind of agreement enshrines the investment you agreed to have recognised at the time, and also ensures that your portion of the property is not automatically willed to your spouse in the event of your premature death.
Joint tenancies are a near-irrefutable 50-50 split, and will result in the even splitting of the property’s value and/or obligations with your spouse. You may, however, be able to negotiate between solicitors as to how money is handled, depending on which of the following options you pick.
The easiest option would be the sale of the property, wherein both of you vacate, and the proceeds of the sale are split according to your prior tenancy agreement. However, one of you may be attached to the property, and hence prefer to stay – in which case, they could buy out the property from the other, with a lump sum and ensuing responsibility for any remaining mortgage payments.
