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What happens to your property upon divorce?

Published on 14 September 2021 | Modified on 16 January 2023

Written by Lana Jones

Divorce & Family

The division of assets during the divorce process can be a highly complex undertaking, one that could lead to a lengthy negotiation period between the two parties involved.

When it comes to assets such as property, there are a number of considerations when deciding how this will be divided. Property in particular can be a highly contentious subject within divorce proceedings as it is often the biggest ‘liquid’ asset that a married couple may have. We take a look at just some of the considerations for property during divorce proceedings below:

Identifying property status

Property will be viewed in one of three ways:

  • Matrimonial property – property purchased during a marriage
  • Non-matrimonial property – property purchased prior to the marriage
  • Property not owned but lived within the property as cohabitants

Non-matrimonial property does not necessarily mean the other spouse isn’t entitled to a percentage. This is often determined by how ‘long’ a court determines the marriage to be; there is no definition of what constitutes a ‘long’ marriage, but the longer the marital relationship, the less likely the court are treat assets as ‘non-matrimonial’.

Should one party wish to make a claim against a property that is jointly owned or that their spouse owns solely in their name, this is entirely possible. A claim can be made against land, residential property and even commercial property owned by a spouse. A court can also order the transfer of shares, life policies, property contents and collectors’ items.

Working with the courts

If an agreement cannot be made between two spouses, and if mediation is not successful, the next step is to seek court action to resolve the division of property and other assets. The court has a wide discretion to determine what may be considered a ‘fair’ division and the starting point is for the court to consider a number of factors, including:

  • Income and earning capacity
  • Financial needs, obligations and responsibilities
  • The standard of living before the breakdown of the marriage
  • The ages of the parties
  • Any physical or mental disabilities
  • Contributions that each party has made, including looking after the home or caring for the family
  • In rare cases, the conduct of parties

The court’s first consideration is always the welfare of any dependent children.

Ultimately the courts seek to find a resolution that will ensure the well-being of both parties and any children. There are a number of steps that can be taken before court action to ensure fair outcomes but we would highly recommend the support of a trained family law specialist to guide you through this process.

For the team at Poole Alcock Family Law, we have helped countless couples navigate the tricky waters of divorce proceedings to achieve the fairest outcome. Get in touch with us today to find out more about how we could support you.

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