Getting a divorce - What should you be thinking about?

Going through a divorce is a stressful time for anyone. Taking the first step to make the decision to file for a divorce itself is hard enough, let alone then having to deal with the process and the financial aspects of the marriage.

What practical steps should you be thinking of taking?

1) Getting legal advice

Having a solicitor to guide you through the divorce process is not essential, but a divorce can be an overwhelming experience and having a professional’s advice can be invaluable. Choosing the right solicitor for you is very important as they will be the person helping you through one of the biggest changes in your life and therefore, it is sensible to have a preliminary consultation with your solicitor and make sure you feel comfortable with him or her.

2) The Family Home

It is usual for the value of the family home to be the largest matrimonial asset. On divorce, ensuring that the property is protected is essential. You may be worried that your spouse may try to sell or re-mortgage the home in an attempt to diminish the matrimonial assets available. What you should do depends on how the property is held:

Family home in the parties’ joint names

If the family home is held in the joint names of you and your spouse, neither of you can sell or re-mortgage the home without the other’s consent.

Family home in a party's sole name

If the family home is held in your spouse’s sole name, then they can sell or re-mortgage the home without your consent or knowledge.

Nevertheless, there are steps that can be taken to ensure that your interest in the home is protected. As a spouse, you will have what are referred to as ‘Matrimonial Home Rights’ in the property. These rights can be registered with the Land Registry and will give you a right to occupy the home until divorce. Your rights can be registered using a simple form, and if you have the instructed a solicitor, they will do this for you.

If you are unsure as to how the family home is held, a quick search on the Land Registry will reveal the status of ownership. 

If the family home is jointly owned, how it is owned will need to be taken into consideration as the status of ownership will have significantly different consequences should one of you die during the divorce proceedings.

a) Joint tenants
If the home is held as joint tenants and one of you dies, then it will pass to the surviving spouse automatically, irrespective of what is contained in the deceased spouse’s will.

b) Tenants in common
If the home is held as tenants in common, then the deceased spouse’s share of the home will not automatically pass to the surviving spouse. How their share passes will depend on whether or not they had a will.

(i) If the deceased spouse did have a will, then their share will pass in accordance with their will.

(ii) If the deceased spouse did not have a will, then their share will pass under the rules of intestacy.

If your marriage has broken down, you will probably want to own the home as tenants in common so that your share is protected and forms part of your estate. If this is the case, and the home is held as joint tenants, then you will need to serve notice of this on your spouse. If you have instructed a solicitor, they will advise you on how this is to be done.

3) The Mortgage

It must be remembered that in most cases, the family home also represents a liability, unless there is no mortgage secured over it.

If the mortgage is in in the joint names of you and your spouse, which it probably will be if the home is held in your joint names, you are both responsible for the mortgage payments. If you have concerns over the payment of the mortgage, you should make efforts to contact your mortgage provider to notify them and to try to come to some kind of arrangement. Failing to do so may result in your provider bringing proceedings to repossess your home.

If the home is held in your spouse’s sole name, then the mortgage will also probably be in their name. If it is, then they will be liable for the mortgage payments. You may be worried that your spouse stops paying the mortgage. If this is the case, your mortgage provider has an obligation to accept the payments from you, should you have the funds to provide for this, and if repossession proceedings are brought, the court will take into account your ability to pay the mortgage.

4) Making a Will

On divorce, it would also be wise to consider making a will if you have not done so, or updating your will if you have, to ensure that your estate passes in accordance with your wishes. However, it must be remembered that your spouse may still be able to make a claim against your estate under the Inheritance (Provision for Family and Dependants) Act 1975, if they are not provided for in your will.

5) Financial Disclosure

Even if you and your partner are able to reach an agreement in respect of your finances, it is advisable to exchange details of all of your assets, liabilities and income before doing so. In any event, if an application is made to the Court to deal with your finances, you will have to do so

It is therefore a good idea at this stage to gather information in respect of all of your assets (including properties, savings, investments, cars, jewellery, paintings etc.), liabilities (including mortgages, credit cards etc.) and income from all sources, as well as list of your projected outgoings on divorce.

On divorce, there is a lot to think about. However, it is better to be prepared and to take the necessary steps to ensure that the process runs as smoothly as possible for you.