Dividing property is one of the most significant and contested aspects of most divorces. The family court in England and Wales has wide powers to redistribute assets between spouses, and property is almost always at the centre of financial remedy proceedings.
The court takes a broad view of what counts as matrimonial property. This includes the family home, any investment or rental properties, overseas property, and property held in either party's sole name as well as joint names. The starting point is to look at all the assets available and consider what a fair outcome would be.
The family home is usually the most significant asset. The court has several options for dealing with it:
The right outcome depends on the specific circumstances, including the housing needs of any children, the parties' incomes, and what other assets are available.
The court applies the factors set out in section 25 of the Matrimonial Causes Act 1973. These include the financial needs, obligations and responsibilities of each party, the standard of living during the marriage, the age of each party and the duration of the marriage, and any physical or mental disability. The welfare of any children is the court's first consideration.
No, though equality is the starting point in long marriages. The court will depart from an equal division where the circumstances justify it. In short marriages, the court may lean more towards returning each party to their pre-marital position. Where one party has significantly greater needs, for example because they are the primary carer for young children, the division may favour that party even if it is not equal.
Property owned before the marriage, or inherited during it, may be treated as non-matrimonial and given less weight in the division. However, in long marriages or where the matrimonial assets are insufficient to meet both parties' needs, pre-marital assets may be brought into the pot. The length of the marriage and the extent to which the asset has been used for the benefit of the family are both relevant.
Property disputes in financial remedy proceedings are often highly contested and involve significant sums. Having a specialist family law barrister advise you on the value of your position and represent you at the FDR and final hearing can make a material difference to the outcome. Through the Direct Access scheme, you can instruct a barrister directly without needing a solicitor to manage the entire case.
The family court divides property in divorce by reference to all available assets and the section 25 factors. Equality is the starting point but will be departed from where circumstances justify it. The family home can be sold, transferred, or subject to a deferred sale order. Pre-marital property may be ring-fenced in appropriate cases.
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