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5 Things You Should Know About Property and Divorce Laws!

Published on June 23, 2014 by John Sykes in News, Property Investment, Selling

In the early 1980s, I was technically married to the same girl 3 times, in 6 weeks and in 3 different countries. The full story is too long to relate here but suffice to say, the complications involved in the eventual divorce took over 8 years to finalise and considerably longer than that for the acrid wounds to heal and to re-establish a satisfying relationship with my children. However one of the biggest issues to resolve was that of the family house!

The subject of Divorce is filled with legal terms that often become very complicated. For example, the Applicant (the person who applies for the divorce) and the Respondent (the person who is being divorced) refers to both parties in the divorce; phrases such as “one-party of the one side and a second party of the other side” which, by the time you get to the end of the document, you have almost forgotten who is who.

Therefore what I propose to do is treat this in the singular person, namely I, and since I am a male I am going to refer throughout this article to “you”. If you are not a “him” but indeed a “her” then please bear with me.

Do You Need to Distribute Assets before the Divorce?

The answer to this is emphatically NO. If a mutual agreement cannot be reached between the two of you, then it is inevitable that solicitors will become involved and this can often result in exorbitant costs. The main issue of contention is always the disbursement of equity in the family home. By the way, equity means that value left in a property after deducting the mortgage and any other claims against the house. Other general assets, such as furniture, various household fittings, personal items and possibly even the car are easier to agree and settle but the question of the family home is always a problem.

Who Is Going to Live Where?

Whilst there is often a period of separation before the actual, the two of you may well have agreed your own living arrangements, and so this is not a problem. However normally what happens is either you or your wife will agree to take care of any children and so stay in the matrimonial home, whilst the other one will have to arrange accommodation elsewhere. You must remember though, if the ultimate distribution of assets results in a court hearing, the presiding judge will inevitably take into consideration the actual living requirements of both of you. This means that the judge will decide which of you is going to be responsible for the children and that person’s living arrangements will receive a more preferential treatment than the other.

Who Pays for What?

It is a fact that nearly all homes are subject to at least a first and possibly a second mortgage on the property. In the vast number of cases, that ownership and hence the mortgage is registered in one person’s name. If this applies to you, don’t think you have an advantage over your wife, as this will not directly affect the distribution of the equity in the home. You see in the eyes of the law, since it is a matrimonial home, any equity in the property must be shared equally between the two of you. The disadvantage to this arrangement is that if you are the person who is solely registered for the mortgage, then the responsibility for the upkeep of payments on the mortgage rests purely with you and does not include your wife. With a joint mortgage, both you and your wife are equally responsible for the repayments and if these are not met on time, then it can severely damage both you and your wife’s credit history. This could make it very difficult for either of you to obtain another mortgage in the future!

The problem with a joint mortgage arises when the divorce is being contested by you or your wife. You see often the “hurt” party may refuse to make any payments towards the mortgage for whatever reason. Quite frankly, the mortgagor or lender will not really care about your disagreements; all they will want is payment made and in the case of a joint mortgage, this will be, as far as they are concerned, the responsibility of both of you. You also should not forget that if one of you refuses to make a payment because of a contested divorce, then the judge could look unfavourably towards that person when it comes to deciding who is entitled to what amount of the assets.

It is normally the case that whoever is living in the family home prior to the final disposal of assets will be responsible for the running costs. However if children are involved and staying with your wife, if you are the main earner or breadwinner, then you will be expected to contribute not only to those costs but also to the costs of maintaining the children.

Who Divorce Is Whom?

One of the biggest arguments that often occur between husband and wife is the question of which one of you is going to start the divorce proceedings. The interesting point is this – as far as any court is concerned, this question is only a matter of paperwork but you must bear in mind that only one of you can start the divorce since you cannot divorce each other. The court has to be satisfied that the relationship has broken down due to one of five specific reasons and it is not sufficient to state the reason as “we just don’t get on any more – he’s always arguing with me!” You really ought to take legal advice before you submit the paperwork.

Now I said that starting the divorce is really a matter of paperwork as the question of who started it has no bearing on the division of assets. Never forget that if you cannot come to an amicable agreement regarding disposal of the assets, it could end up an extremely expensive exercise once solicitors become involved.

The Matrimonial Home

The largest asset to be divided between you and your wife will inevitably be the matrimonial home. From a purely sentimental point of view, it has often been the home of both of you for many years and so neither of you will really want to abandon it. Unless you have sufficient resources to buy your wife out of her share of the ownership or indeed she buy out you, then without doubt, it will ultimately become essential that the property is sold.

 

I know in my own circumstances, my ex was not a patient woman and therefore I had to arrange the sale of the house as quickly as possible. Since she did not have an income of her own at that time, she needed the money to pay for alternative living arrangements and other essentials. The actual process took nearly 4 months to complete because by the time I had appointed estate agents, suffered the pressure and inconvenience of numerous often time-wasting viewings, I had to wait even longer whilst the ultimate purchaser was able to arrange his own mortgage. I was lucky since it was in the middle of the property boom and so the remaining equity after settlement of the mortgage virtually met both our requirements.

Your experience could well be different, particularly as UK property values have changed. Often there is very little equity left in the property and never forget whilst you are attempting to sell the house, you still have to make the mortgage repayments, which essentially becomes dead money.

I personally wish I had been aware of the possibility of selling the property quickly for immediate cash. This would have substantially reduced the “waiting” period and would have meant that both of us could have got on with our new lives far sooner than we were eventually able to do.

We can help you to sell the home quickly and can often complete the sale within a matter of days. This will greatly relieve the pressure and bring the divorce to an earlier final conclusion.

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