Whether or not a separation is your idea, you should know your rights and understand what the best options are for the division of property. Ideally, you and your ex-partner should agree on how to divide the property between you. Sometimes, however, this is impossible so a judge will need to decide on how to divide the assets. Your rights will depend on whether the separation is a divorce or dissolution of a civil partnership, or simply leaving a relationship.
This article discusses some of the options. The options very much depend on whether you are married or not. You do not need to own the property in order to have a legal right to it, for example, the matrimonial home, or if you put money into a property that is in someone else’s name
Getting good legal advice can remove some of the stress associated with splitting up and can help you to work out what is going to be best for you in the long-term. The following items may need to be divided between you and your former partner.
- The family home and any other real estate/property
- Pensions and insurance policies
- Investments and savings
- Shares, inheritances
- Vehicles, boats, pets
Reaching an agreement yourselves about how best to divide your property after separation will be a lot cheaper and quicker than any other option.
Mediation is certainly a good first option and one we would recommend exploring. If you come to a mutual agreement by the end of the mediation process, you will get a document which sets out what has been agreed. It is important however, to note that this document is not legally binding. To be legally binding you will need a lawyer to draft a consent order and get it approved by a court. You can be legally represented throughout the mediation process. Mediation is available for both divorcing couples and those separating after a period of co-habitation.
Court and litigation
If you and your ex-partner cannot agree on how best to divide the assets of the relationship you can ask a court to make a financial order. Depending on the overall value of the assets, this may not be the best option as it will be a lengthy and more expensive process to determine the split. It is normally appropriate when the ownership of any of the shared assets is being contested by one of the parties or the relationship has broken down to such a degree that non-aggressive discussion is impossible.
You can apply for a financial order as soon as you have started the paperwork for your divorce or separation. If you are unmarried, the process is significantly different and it is vital that you get early legal advice. The court order will cover pensions, spousal maintenance and ongoing payments, investments, property and any other shared financial assets, if you are married. If you have not applied earlier, you can apply for a financial order after the divorce has been finalised however, to do so at this stage is likely to change what you are entitled to.
If you are not married, the options for you are significantly different and can often centre around ownership of a property. The court does not have the power to make the same sort of orders as it would for married couples and your rights to assets belonging to the other party are very limited.
If you are married/in a civil partnership, applying for a financial order will involve two or three court hearings before a judge. The first hearing is to discuss your application in front of the judge. This is followed by a financial dispute resolution hearing. The aim of the financial dispute hearing meetings is to avoid having to go back to court for a final hearing before the judge.
If an agreement is not reached during the financial dispute resolution hearing, the judge will list the case for a final hearing. During that hearing, the judge will hear evidence from both of you about what you should think should happen and then decide the fairest way to divide the assets They will base the decision on factors such as housing need with a priority to the housing needs of any children under the age of 18, how long the relationship lasted, how old the parties are, whether or not there are dependent children, rs and so on. If you have been living together you will have significantly different rights than a couples who divorce or dissolve a civil partnership.
Many unmarried couples who have been together for many years assume they have the same rights as married couples or those who have registered a civil partnership. This is simply not true. No matter how long you have co-habited there is no law providing you any rights to property once you decide to go separate ways. It will depend on how you own any property and the application of trust/property law.
If you have a child with your ex-partner, maintenance is resolve via the Child Maintenance Service and not the court usually (unless the income is over £156,000 gross per annum) and there are limited right to apply to the court for financial provision for a child. As a general rule, you have no rights to maintenance for yourself or the house, unless you contributed in money or some other way – perhaps by giving up a valuable council tenancy. To protect yourself in this situation it is a good idea to have a cohabitation contract drawn up by a lawyer which sets out how finances and property are to be dealt with if you separate.
The breakup of a relationship can be stressful, particularly if there are children involved. The separation will inevitably mean that any property that is jointly owned will need to be shared between you and your former partner. Your lawyer will be able to explain your options for dividing assets and can help make the legal process less painful.