The Matrimonial Home and Family Assets
- The matrimonial home is generally treated as a family asset, regardless of whether it is held jointly or in one party's name.
- Even when there are multiple properties (e.g., matrimonial and non-matrimonial properties), the court typically adopts a broad brush approach, focusing on fairness rather than strict proprietary claims.
- The timing and manner of acquisition of a property may be considered, but the primary focus is on overall family needs and circumstances.
Third-Party Interests and Bankruptcy
If a property involves third-party interests or one spouse is bankrupt, the court must formally determine each party's property interests. This can complicate proceedings, requiring detailed examination of ownership and claims.
Housing Needs and Property Orders
The court prioritises housing needs, particularly for the primary carer and children, but it also considers the other parent's need for suitable accommodation. Key points include:
- The welfare of children is the first consideration, often requiring a balance between both parents’ housing needs.
- If necessary, the court may order the sale of the matrimonial home to provide for both parties’ housing.
- A lower-cost home may be considered for the primary carer if it meets the children’s needs, allowing the release of capital for the other party.
Types of Property Orders
- Outright Transfer
- One party’s interest in the property is transferred to the other.
- If the property is mortgaged, the party taking sole ownership should ensure the co-owner is released from the mortgage to avoid future liability.
- Transfer Subject to Charge
- The party relinquishing their interest receives a financial charge payable on a fixed date or event (e.g., sale of the property, remarriage, or children reaching a specific age).
- The payment can be a fixed sum or a percentage of the sale proceeds.
- Mesher and Martin Orders
- Mesher Order: Delays the sale of the matrimonial home until the children are no longer dependent.
- Martin Order: Delays the sale until some time after the children are no longer dependent.
- These orders are relatively uncommon but may be used to maintain stability for children.
- Order for Sale
- Used when a property must be sold to divide assets or meet financial needs.
Rental Properties
- Private Sector Tenancies: Courts rarely transfer private rental agreements due to short terms or restrictions (e.g., no assignment clauses).
- Local Authority or Social Housing Tenancies: These may be transferrable under certain circumstances, but the agreement must be reviewed carefully as the terms can vary significantly.
Non-Married Parents: Schedule 1 Applications
For unmarried parents, Schedule 1 of the Children Act 1989 allows property to be settled for the benefit of the child until they reach adulthood or complete full-time education.
Conclusion
In financial remedy proceedings, the court adopts a flexible approach to property division, prioritising the needs of children and fairness for both parties. Various orders are available to address specific circumstances, ensuring a balanced outcome that reflects the family’s overall situation.
For expert guidance on property matters or assistance with financial remedy applications, we can help. If you're starting your legal journey, explore our free guide to completing Form C100.