Married couples often buy a property and a range of other assets together, but what happens to property that was owned before the marriage began if the couple decides to divorce?
Many people in the UK are uncertain about who gets ownership of pre-marital assets in divorce cases and knowing what happens to property owned by one spouse is particularly tricky.
To understand this, we need to know how the court defines marital property and assets in general. This is because it will impact how they view property owned before marriage and if they will define it as marital or not.
What is Matrimonial Property?
Generally speaking, matrimonial property is all property acquired by the parties after the marriage or civil partnership, unless it is non-matrimonial property.
Non-matrimonial property is usually found in the form of gifts or inheritance from a third party, as well as pre-marital property. The net value of the property and assets are calculated to work out how best to distribute between the two parties after a divorce.
The property can be owned either individually or in joint names as a family before the breakdown of the marriage, at the time you stop living together or start leading separate lives if you stay in the same house or raise proceedings for divorce. This date is referred to as the “relevant date” or “date of separation.”
What Happens to Property During a Divorce?
There is a wide range of variables that can affect what happens to the property during a separation and divorce, including how long they’ve been married, how long each person has lived in the property and how much they individually earn.
If children are involved, deciding who gets the house in a divorce can sometimes make the process even more complex.
Is Property Owned Before the Marriage, Marital Property?
You may believe that according to the definition above that property and assets obtained before the marriage wouldn’t be classed as marital property.
However, it is not as clear as that in real life. When you are married or in a civil partnership, many things will be shared and contributed to throughout the relationship. This is where the definition of marital property becomes blurred.
The answer to this question will depend entirely on you and your partner’s situation. It can depend on a range of things, such as how long your marriage was and how financially independent you are. However, there are a few universal rules and concepts that will apply.
The Marital Home
This is the most common example where property owned by a party before the marriage may come into account. If a house owned by one person prior to the marriage is lived in as your marital home, this will usually be treated as a matrimonial asset, although that does not necessarily mean it would be divided equally.
If a house owned prior to the marriage by one person is not the marital home, it may be considered non-matrimonial property and treated differently.
If you never lived in the property as your marital home, then your chances of successfully claiming for a share of the home are quite slim. Of course, if you can demonstrate to the court that you will be significantly worse off without funds from selling or renting out the property, your claim may be considered.
Non-matrimonial assets, such as separate properties owned before the marriage can be considered by the court if there is simply not enough money for you to rehouse otherwise. You would need to demonstrate to the court that your needs cannot be met without funds from the sale of this property.
Contributing to a Property
If you are not on the mortgage of the property, there is still a chance you can have a claim to it. The family home is given special status in any matrimonial court proceedings. Just because you are not named on the title deeds or the mortgage does not mean you are not entitled to any share in its value.
You can also still apply for a Matrimonial Homes Right Notice even if you are not on the mortgage. If it is your home, you can apply.
If you are not married but have lived together in a property to which you have contributed in other ways, such as helping with extensive renovations, which have added value, then it is worthwhile seeking specialist family law advice about any claims you may be able to make.
This can apply to properties which were not deemed the marital property as well. If you have made a financial investment into the property, which has helped increase its value, you have a case to claim a stake in it.
How the Courts Fairly Divide Matrimonial Property in Scotland
Scottish law tries to apply the “clean break principle.” Capital or lump sum payments, pensions, sharing orders and property transfer orders tend to be made. Ongoing support following the divorce is rare and usually only awarded for a short period of time after the divorce is finalised.
The courts aim to share the value of the matrimonial property as “fairly” as possible. In most cases, this is defined by an equal division of assets. However, there are arguments that can be made based on a number of factors and individual circumstances to tip the balance.
Any such factors are often considered a means to advance an argument for “unequal division” of assets.
Some examples of such situations include:
- One party is unable to work.
- One party was the primary caregiver and thus gave up the opportunity to work.
- One party gave up their career in order to further their spouse’s career.
- Any business assets owned pre-marriage by one party, which have been significantly increased during the course of the marriage.
- An unequal division is necessary for the good of the children. For example, to allow them to continue living in the family home and not disrupt their routine.
Types of spousal support:
- Both parties to a marriage are legally required to financially support one another.
- There are two major types of spousal support which can be claimed.
Support for the Division of Assets in Scotland
If you need any further assistance regarding the information on the division of assets in Scotland or anything else regarding matrimonial separation, please don’t hesitate to get in contact and we’ll be sure to do all we can to assist you.
You can also call Cath Karlin Family Law on 0131 357 1515 or email firstname.lastname@example.org for any further advice.