Working through a divorce is rarely a straightforward process, with a wealth of potential hurdles to overcome along the way. One area that is often a sticking point in divorce is jointly owned properties, which can make an already emotionally charged process even more contentious. A home is often much more than a financial asset, with memories and emotional attachment making moving forward challenging.
During a divorce, it is important to understand the legal and practical consequences of co-ownership of a property and how to best handle it. In this article, we will discuss some of the potential pitfalls of jointly owned property when getting a divorce, and we will explain how our team at Elite Law Solicitors can help.
If you are going through a divorce and have jointly owned properties, book a free initial consultation with our specialist lawyers today by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
Determining property ownership
Before entering into negotiations or taking any major legal next steps, you should first determine the type of property ownership in place. In England and Wales, jointly owned property usually falls into one of two distinct structures, which are:
Joint Tenants
A joint tenancy is quite a common arrangement that requires both parties to own the property together as a single legal entity. This means there are no defined shares, giving both parties equal rights to the entire property.
One of the key features of a joint tenancy is the right of survivorship, which outlines that if one party dies, then the other automatically inherits the whole property. This is true even if the terms of a will were to dictate otherwise.
When a joint tenancy is involved in a divorce, one party may choose to sever it. This can help remove the right of survivorship and convert ownership into a Tenancy in Common.
Tenants in Common
The other structure is a Tenancy in Common, where each party owns a distinct share of the property. The distribution of shares does not have to be equal with a tenants in common arrangement. Ownership is documented with a declaration of trust when the shares are not equal.
Determining whether you are joint tenants or tenants in common is important as it directly affects your rights, the potential outcomes in a divorce settlement, and what steps you may need to take to protect your position.
Pitfall: Failing to protect your rights after separation
During a divorce, one spouse may leave the family home as part of the separation. From a legal perspective, though, leaving the property does not remove your legal rights or prevent you from reclaiming access unless court-ordered to.
Home rights notices
If the family home is registered solely in your spouse’s name, you may need to register home rights with HM Land Registry. This prevents the owning spouse from selling, remortgaging, or transferring the property without your consent.
Failure to register home rights is a common pitfall that can leave a non-owning spouse in a vulnerable position, especially if the other party attempts to dispose of the asset during divorce proceedings.
Pitfall: Not severing a joint tenancy when necessary
If you own the property as joint tenants and divorce proceedings have started, it may be in both parties’ best interests to amend the ownership structure.
The right of survivorship means that if one spouse dies before the financial settlement is finalised, the entire property automatically transfers to the other spouse irrespective of the terms of your Will. This could lead to a completely unintended outcome, especially if the relationship is acrimonious.
Severing the Joint Tenancy is usually straightforward and can be done through a written notice to the other party and a Land Registry application. However, many separating couples either overlook this step or are unaware of its importance. Leaving the Joint Tenancy unsevered is problematic as it can create unnecessary risk and complicate the financial settlement.
Pitfall: Assuming equity will be split 50/50
Many individuals assume that because a property is jointly owned, the equity must automatically be split equally. The reality is that divorce courts have significant discretion about how assets are divided. They work based on what would be considered fair and reasonable in the circumstances.
Factors considered by the courts
The court will take into account a number of factors when deciding how to allocate assets during a divorce. Some of the main areas they focus on are:
- The welfare and housing needs of any children
- The financial needs and resources of each party
- The standard of living during the marriage
- The duration of the marriage
- The contributions of each spouse, both financial and non-financial
Assuming a simple 50/50 split can lead to unrealistic expectations, stalling points and disappointment during negotiations. As this is quite a nuanced area of divorce law, it is highly advisable to speak with a specialist family solicitor.
Working with professionals, like one of our team at Elite Law Solicitors, will ensure you understand how these principles will apply to your specific circumstances.
Pitfall: Overlooking mortgage responsibilities
Even when a couple separates, both spouses are jointly responsible for the mortgage until the mortgage lender formally releases one party or the property is sold. This is true regardless of who lives in the property or who is paying the monthly instalments.
Failing to meet the responsibilities of a mortgage during divorce proceedings has some serious consequences, including:
- Damage to both parties’ credit records if mortgage payments are missed
- Lenders may pursue either or both parties for arrears
- Defaulted mortgages can impact the ability of either spouse to obtain credit or another mortgage in the future
It is therefore important to stay on top of mortgage payments during a divorce. Even when negotiations are ongoing, the mortgage payments need to be made. If this is not financially feasible, legal advice should be sought immediately to determine the available options.
Pitfall: Forcing the sale too early or too late
A divorce is already full of big decisions, but when a joint property is involved, it adds a few more. One major consideration is when to sell the property, as mistiming the sale can lead to a lot of stress and potential financial loss.
Selling the home too soon and you risk several problems that range from forcing children to move schools to taking a lower sale price due to an unfavourable market. Selling too late has problems as well, such as heightened tensions if both parties continue to live in the home or financial strain from mortgage costs during a divorce.
The court can also issue orders relating to the sale of the property, including a Mesher Order, which postpones the sale until a triggering event occurs (such as children reaching adulthood).
Pitfall: Attempting to navigate the process without legal advice
Property issues in divorce are notoriously complex, and the consequences of making an uninformed decision can be expensive and long-lasting. Without professional guidance, you risk:
- Losing significant financial value
- Becoming responsible for debts that could have been avoided
- Agreeing to unfavourable settlement terms
- Failing to protect their legal rights or future interests
A solicitor can help you understand your options, negotiate on your behalf, and ensure that all legal formalities are correctly completed. This support is invaluable during what can be an emotionally overwhelming time.
How Elite Law Solicitors Can Help
How Elite Law Solicitors Can HelpOur team at Elite Law Solicitors provide specialist support to individuals dealing with jointly owned property during a divorce. We are highly experienced in this area of law, which allows us to handle these cases with compassion and professionalism. Some key areas where we can assist include:
- Explaining your ownership structure: We help you understand whether you hold the property as Joint Tenants or Tenants in Common and can advise on whether severing the Joint Tenancy is appropriate.
- Protecting your home rights: We can assist you with registering your home rights at HM Land Registry if the property is in your spouse’s sole name. This ensures it cannot be sold or transferred without your knowledge or consent.
- Negotiating a fair financial settlement: We represent your interests in discussions or court proceedings to secure a balanced and sustainable division of property and other assets.
- Providing clear, tailored legal advice: We offer structured guidance throughout the process and helping you make informed decisions based on your personal circumstances.
Avoid problems with joint property during a divorce with our help
Jointly owned property is one of the most difficult assets to deal with during a divorce. Seeking timely advice from an experienced family law solicitor is the most effective way to protect your rights, avoid common mistakes, and work towards a fair and sustainable outcome.
If you would like tailored advice on jointly owned property and / or divorce, our specialist lawyers are here to help. Simply get in touch today and book a free initial consultation with one of our team by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
