Lauren Preedy – Senior Solicitor – Head of Divorce Team

Property and Divorce

There are separate pages about maintenance issues and pensions, but a key part of resolving the financial side of the divorce is deciding how to deal with the couple’s property.

Property Adjustment Orders

This is the name for the order which requires one of the couple to transfer their interest in a property to the other. Orders can be transferred to the minor children of the family or adult children of the family who are still in education or where there may be special circumstances such as disability. This can extend to requiring the variation (for the benefit of the parties or their children) of a prenuptial or postnuptial settlement.

Timing

legal 500 leading firm logoA property adjustment order cannot take effect until the granting of a decree of divorce, nullity or dissolution has been made absolute/final.

What is property?

There is no definition of property in Divorce Law. However, it generally includes buildings, land, shares, and policies as well as anything that is capable of being valued in money or money’s worth. This can include including assets in a partnership, a council tenancy, or a tenancy in the private sector.

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.

Valuations

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.

Third-party interests

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.

Latest News

Courts Service sets out role of remote hearings

HM Courts & Tribunals Service (‘HMCTS’), which is responsible for the administration of criminal, civil and family courts and tribunals in England and Wales, has given an indication of the role of remote court hearings

Read more
No-fault divorce delayed until 2022

The Government has announced that the new system of no-fault divorce, which it had previously indicated would come into force in the autumn, will not now do so until spring next year.

Read more
Large increase in new-born babies subject to care proceedings

New research has found that there has been a large increase in the number of new-born babies (i.e. babies under 2 weeks old) in England and Wales subject to care proceedings.

Read more
Superyacht case demonstrates problems enforcing orders

Obtaining a financial remedy order should signal the end of divorce proceedings. The terms of the order simply need to be implemented, and matters will then be concluded. Superyacht case demonstrates problems enforcing orders..

Read more
Effects of pandemic on family justice system becoming clear

Like almost every walk of life, the Covid-19 pandemic has had profound effects upon the family justice system. Some of these may just be transient, but others may change the system forever.

Read more
We are recruiting; Paralegal/Potential Trainee Solicitor – Fantastic opportunity

Ian Walker Family Law and Mediation Solicitors are recruiting with a view to long term growth. Fantastic opportunity with dynamic Legal 500 niche family practice.

Read more
Charity warns about use of technology in domestic abuse

An important element of the newly passed Domestic Abuse Act is the first statutory definition of ‘domestic abuse’. The definition is much wider than what has in the past been considered to be abuse, including not just physical abuse

Read more
When can a court terminate parental responsibility?

Most parents will have ‘parental responsibility’ for their children. Parental responsibility means the legal responsibility to do whatever is necessary to look after the child. Parental responsibility is normally shared by both parents.

Read more
Domestic Abuse Bill passes at last

On the 29th of April the long-awaited Domestic Abuse Bill received the Royal Assent, and so passed into law. The Act, as it now is, is perhaps the most significant reform to the law on domestic abuse for the last twenty-five years.

Read more
Son ordered to pay mother £75 million in record divorce case

The son of a Russian oligarch has been ordered by the High Court in London to pay record divorce case of some £75 million to his mother, in connection with what is believed to be the highest-money divorce case ever in this country.

Read more
Is online mediation here to stay?

With the COVID restrictions which have been in place now for nearly a year, many changes to the working environment have taken place. We have adapted to online mediation. Meetings have been set up on line and parties to mediation

Read more
Family Mediation in a pandemic

Family Mediation in a pandemic. The pandemic has, much like most other things at the moment, forced mediation online. There are benefits to this. For some it can be a much less daunting process when taken place remotely as individuals

Read more