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. There is no right and wrong way or legal formula for dividing up property, so it will very much depend on your individual circumstances and what your requirements are.
In the UK, the starting position will be a 50:50 split but it is possible that one party will end up with a greater share for a variety of reasons. You do not need to own the property in order to have a legal right to it, for example, the matrimonial home.
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
- 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.
Regardless of whether or not you agree on the division of assets, you must attend at least one mediation session before applying to the court for help with dividing up the assets. 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. The court order will cover pensions, maintenance and ongoing payments, investments, property and any other shared financial assets. 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.
Applying for a financial order will involve up to 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, and ultimately a final hearing when a judge will make the final decision. How many hearings you will need to attend will depend on how quickly a settlement is reached.
If an agreement is not reached during the financial dispute resolution hearing, the court lists the final hearing when a judge will decide the fairest way to divide the assets and will normally look to try to achieve a clean break for the parties at the earliest opportunity. The court will base the decision on factors such as how long the relationship lasted, how old the parties are, whether or not there are dependent children, the different roles played by the partners and so on.
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.
If you have been living together you will have fewer rights than a couples who divorce or dissolve a civil partnership.
Even if you have a child with your ex-partner your legal rights are limited to ensuring the well-being of the child, and you can apply to the court for financial provision for that purpose. As a general rule, you have no rights to maintenance for yourself or for the house. 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.
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