How are properties treated by the courts on divorce?

Parties to divorce proceedings may hold property either solely, jointly with the other (either as joint tenants or tenants in common), or jointly with a third party. If a property is held with a third party, it is sometimes necessary to join that party to the financial proceedings.

Broadly, property may be classified as either matrimonial or non-matrimonial. Matrimonial property is that built up by the parties during the marriage period (generally from the date of cohabitation – insofar as that cohabitation led seamlessly to marriage – until the date of separation). The starting point is that this is to be divided equally. It is distinct from ‘non-matrimonial’ and/or ‘pre-marital’ property, which is property either brought into the marriage by a spouse, having been owned prior to the relationship, or acquired unilaterally (such as by way of gift, or inheritance), which is to be kept separate. However, the marital home is generally an exception to this.

Additionally, during the course of a marriage, a pre-marital property may become ‘matrimonialised’ and subsequently open to consideration for division within the proceedings. This is often the case where a property was occupied as the family home for a period of time.

Even where property is non-matrimonial, it may have to be ‘invaded’ if a party’s share of the matrimonial assets is not sufficient to meet their needs. At the conclusion of financial proceedings, the court has the power to order a sale of a property, and/or the transfer of a property.

How does the court treat the marital home?

A key issue during divorce proceedings will often be what happens to the matrimonial home. This is usually the most valuable asset owned by a family.

Although the general rule on property differentiates sharing based on whether the asset is matrimonial or non-matrimonial, the marital home is typically an exception, considered separately and, in principle, shared equally between the parties regardless of legal ownership or contributions. If you are not a legal owner of your family home, you can apply to register your ‘matrimonial home rights’, which protect your right as the spouse of the legal owner to occupy the property pending conclusion of any financial proceedings.

Who can stay in the home? 

In divorce proceedings, it will often be questioned who can stay in the marital home after divorce. If there is a valid prenuptial agreement in place, then this will usually include what happens to the home. Where there is no such agreement in place, then methods such as mediation, arbitration and collaboration are preferable for being quicker, cheaper and more amicable methods to resolve disagreements as to how to deal with the matrimonial home. However, where the parties cannot agree on the matter, this will need to be resolved by the Courts. It may be that there are simply insufficient matrimonial assets for either party to remain in the matrimonial home, such that the family home has to be sold and the proceeds divided.

How does the court treat investment properties?

An investment property is treated the same as any other asset. As a result, a determination will initially be made as to whether it is matrimonial or not. If it is deemed as matrimonial property, regardless of whose name the property is held in, it will be considered part of the matrimonial pot which is to be divided between the spouses.

How does the court treat holiday homes?

Generally, holiday homes will be taken into account in the matrimonial pot to be divided if they are deemed to be matrimonial property. If the holiday home is within the UK, then the court can make an order for its sale or transfer.

Even if the holiday home is overseas, the court is still able to make an order for sale or transfer, although the enforceability of the order will depend upon the foreign jurisdiction in question.

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