Does this extend to overseas property?
In short, yes – the Court will assume that a foreign court will enforce its order in the absence of any evidence to the contrary. The Court has the power to make property adjustment orders regarding overseas property. If it were clear that a foreign court would disregard a UK order – then the court would still be able to take the value of that property into account when it divided up the property of the couple as a whole.
The Court will normally expect the couple to agree between them what is a reasonable value for the couples different property. If agreement cannot be reached then the court will order that an independent expert provide a valuation.
For houses and other real estate the starting point for agreeing a valuation is normally for each of the couple to obtain an open market appraisal of the value of the property by an estate agent.
Where expert valuers are to be appointed – this would require the permission of the court. The reason for this is to avoid multiple experts being instructed and then court time being wasted by disagreements between experts. The preferred approach is for a single joint expert to be appointed. Normally the single joint expert would be agreed between the parties – but failing this the court may appoint an expert itself.
if a court is considering making a property order it must also consider any dispute concerning the ownership of the property. This may mean a consideration of the rights of third parties. At a very simple level notice of divorce financial proceedings need to be provided to any mortgage company – because a mortgagee is very obviously an interested party. In most cases there is no intervention by the mortgage company.
Third parties who might intervene could be tenants or elderly family members who could be affected if an order were made to sell what would be their home as part of the divorce settlement. Or perhaps the parents of one of the couple, who may have loaned money to the couple to purchase a house.
The effect of remarriage
a property adjustment order cannot be made in favour of one of the couple if they have subsequently remarried or formed a civil partnership – unless they made application to the court prior to the remarriage or civil partnership.
Every case is different
Of course, that the court can make an order does not mean that it should or will.
Every family is different, and the outcome of every case is specific to the history and needs of that family. That is why it is important that anyone considering a divorce takes legal advice.
We are fortunate to have a very strong divorce team who will be happy to assist.