Partner, Family Law
Whether you’re separating earlier or later in life, the most valuable asset in a divorce is often your family home. But when you’re in the autumn of your life, there are some things to consider in a divorce, such as your mortgage capacity and your matrimonial home rights.
When dealing with the division of your assets collected during marriage, the starting point for the Courts is usually a 50/50 split. But dividing your assets equally doesn’t always mean a fair division of assets or that a division in this way will sufficiently meet your needs.
In the event that an equal division doesn’t meet your needs, you should get advice from a Divorce Solicitor.
Our helpful team of expert Divorce Solicitors here at Simpson Millar regularly deal with all matters arising from divorces. As such, we can look at all of your assets by providing financial details and how they can be divided so that you can be sure that your financial settlement is fair and will meet your needs.
Deciding who stays in your family home or if you both move out and sell the property can be difficult, especially if you’ve shared your home with your former partner for many years.
First of all, it is important to understand how you own your property, either as joint tenants or tenants in common, and how this will affect what you’re legally entitled to.
This means you jointly own the property with your former partner on a 50/50 basis and both of your names are on the Title Deeds and the mortgage.
When a property is owned as joint tenants there is a Right of Survivorship which means if one of you dies, the other will automatically get the remaining share of the home. This survivorship rule will apply no matter what is written in your Will.
A Right of Survivorship is usually asked at a time where the purchasers have large amounts of paperwork to get through and often couples will make a choice without much thought. However, the choice can have significant consequences in the long term if they continue to own that property at the time of one of their deaths.
When a property is owned as joint tenants, then both owners together own 100% of the property. Therefore, if one co-owner dies then the survivor will continue to own 100%.
The owners do not each own a distinct share as joint tenants and so the surviving co-owner inherits by law which is then known as survivorship (or the Right of Survivorship). The surviving co-owner will then be able to dispose of the property as they wish during their lifetime. If the co-owner chooses not to dispose of the property then this will pass under the terms of their own will on their death (or the Rules of Intestacy if no will has been made).
In this situation, you own the property with your former partner in equal or unequal shares, expressed as a percentage. This could be a 50/50 split or it may be different if a couple wished to split the property percentage to reflect different financial contributions.
There is no Right of Survivorship when you own a property as tenants in common, which means if one of you dies, that person’s share will form part of their estate when they die and will be passed on in accordance with their Will. If you don’t have a Will, your share will pass in accordance with the Rules of Intestacy.
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It’s never too late to enter into a new relationship but it is important to plan for the future and think about your finances. And at this point in your life, there’s a lot to think about when entering a new relationship.
There’s a lot of paperwork involved in divorce, which is often referred to as ‘the divorce papers’. If you’re thinking of applying for divorce without a Solicitor, it’s very important that you don’t make any mistakes on the divorce application or the response form, as this can make the divorce process take a lot longer.
You don’t have to go to Court to resolve your finances in divorce if you and your ex can come to an agreement about who gets what. If you can’t agree then you may need the intervention of a Divorce Solicitor but even then, going to Court will be a very last resort. Most cases settle and agree without Proceedings ever needing to be issued.
Simpson Millar LLP. (05/06/2019). What's the Difference Between a Decree Nisi and a Decree Absolute? [Online] Available at: https://www.simpsonmillar.co.uk/family-law-solicitors/divorce/whats-the-difference-between-a-decree-nisi-and-a-decree-absolute/ (Accessed: 20/12/2023).
UK Government. (n.d.). Make a Will. [Online] Available at: https://www.gov.uk/make-will (Accessed: 20/12/2023).
HM Land Registry Blog. (2022). What kind of joint ownership do I have? [Online] Available at: https://hmlandregistry.blog.gov.uk/2022/11/02/what-kind-of-joint-ownership-do-i-have/ (Accessed: 20/12/2023).
UK Government. (29/08/2023). Notice of Home Rights Registration (HR1). [Online] Available at: https://www.gov.uk/government/publications/notice-of-home-rights-registration-hr1 (Accessed: 20/12/2023).
The Gazette. (11/08/2020). Wills and Probate. [Online] Available at: https://www.thegazette.co.uk/wills-and-probate/content/103797 (Accessed: 20/12/2023).
UK Government. (n.d.). Joint Property Ownership. [Online] Available at: https://www.gov.uk/joint-property-ownership (Accessed: 20/12/2023).
UK Government. (n.d.). Inheritance Tax: How to Inherit if Someone Dies Without a Will. [Online] Available at: https://www.gov.uk/inherits-someone-dies-without-will (Accessed: 20/12/2023).
Lorraine is a Partner at Simpson Millar, specialising in Family Law for over 20 years.
She handles middle to high net value cases, including pension claims and complex trust, and also advises on pre-nuptial and post-nuptial agreements.
Lorraine has unrivalled knowledge of public sector pensions, in particular police pensions, having advised police officers on pension claims for two decades.
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