What happens to property that is owned before the marriage when you get divorced? Well, wondering what will happen to the property can become stressful and overwhelming so in the first instance before making any decisions, it is important to know what your legal rights when you are married.
Matrimonial assets are any assets that you and your partner acquired during the course of your marriage which can typically include the family home, pension accrual, investments and savings. In contrast, non-matrimonial assets are assets acquired before a marriage or after separation. When dealing with financial issues arising from the breakdown of a marriage, assets are classed as either matrimonial or non-matrimonial. This classification determines how assets are dealt with in divorce proceedings between parties.
What happens if I owned the property before marriage?
If one party owned a property or properties before the marriage, how the property has been treated throughout the marriage will determine whether it will be considered as a matrimonial or non-matrimonial asset.
If the property has always been held in one person’s sole name, has never been lived in as the marital home, and any income received from that property has been kept in a separate bank account and not used for the purposes of the marriage, then it may be possible to argue that it should be classed as a non-matrimonial asset and ringfenced from any financial settlement.
Where it can become complicated is when the property, which is owned in one person’s sole name and brought to the marriage by that person, has been ‘mingled’ with the matrimonial assets. For example, the non-owning spouse has contributed to repairs or maintenance or the rental income has been used to benefit the marriage. If this happens, then it becomes much more difficult to argue that the whole property should be ringfenced. An argument for separating non-matrimonial property also weakens in cases of long marriages.
Regardless of who owns the property or when it was purchased or acquired, if it is lived in by both parties during the marriage as the matrimonial home it will almost always be available for sharing. This does not necessarily mean that the property will be shared equally between both parties and it will depend on the individual circumstances of the case.
When will non-matrimonial property be taken into account in a financial settlement?
Even if a property is clearly a non-matrimonial asset and has never been occupied as the matrimonial home, the concept diminishes if the matrimonial assets are not sufficient to meet the needs of one or both parties and any children of the marriage. If needs cannot be met through division of the matrimonial assets then the Court will look to the availability of non-matrimonial assets and resources, including property.
How will the property be divided in a divorce?
If the house is determined to be a matrimonial asset, it will form part of the financial settlement and will be dealt with fairly. There are a number of different and creative ways in which property can be dealt with in a divorce to achieve a fair settlement and the factors which should be taken into consideration are as follows:-
- any dependent children of the marriage
- age of the parties to the marriage
- income and earning capacity
- health and/or disability
- standard of living during the marriage
- contributions of each party
- any other relevant circumstances
We are going through a divorce, but my name is not on our home?
If your name is not on the title deeds or mortgage of the former matrimonial home, this does not mean that you lose your rights. As discussed above, the former matrimonial home is subject to the ‘sharing principle’ and will be dealt with in any financial agreement.
When the former matrimonial home is owned in your ex’s sole name, the first and foremost thing for you to do is take advice in respect of registering your matrimonial home rights. This will prevent the property being sold or otherwise disposed of without your knowledge or consent.
Once the notice has been registered, it will be visible to any potential buyers if your home has been placed on the market for sale thus preventing sale or disposal of your home without your approval.
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