Divorce can be complicated and the more assets a couple has to divide, the more complicated it can get. When there is a property portfolio to be divided “fairly”, the process can be very complex and ideally both parties should have appropriate legal advice.
Handling the divorce aspect
Even if the divorce is by mutual agreement, one party will still have to petition for divorce from the other and will have to state their grounds for doing so.
Assuming that all conditions are fulfilled, the court will issue a “decree Nisi” and the process of dividing the former couple’s assets will officially begin.
Handing the separation of property
In order for property to be divided fairly, the court has to know exactly what property the couple has (both jointly and individually) and, crucially, its value, preferably its exact value, but if that is not possible, then at least a credible (read professional) estimate.
If a couple is splitting amicably, or at least civilly, then the smoothest way to progress from decree Nisi to settlement is through the “collaborative law” process.
This is very similar to the process of mediation; the key difference is that it is undertaken by specialist lawyers, who can provide meaningful legal guidance as well as facilitating the dialogue between the two parties.
It is important to note that settlements agreed by a divorcing couple are not necessarily just going to be “rubber-stamped” by a judge. It’s the judge’s job to check that both halves of the splitting couple are getting a fair deal and if they are not satisfied that this is the case; they will not approve the settlement.
In addition to this, the financial welfare of any minor children will be kept front and centre at all times and a judge will need to be completely satisfied that appropriate provisions have been made for them or, again, they will not approve the settlement.
Dealing with the aftermath of the split
While it’s entirely understandable that couples may wish to get the split over and done with as quickly as possible so that they can get on with the rest of their lives, it’s generally very much recommended to wait for the court to agree sign off the settlement and issue a court order to give it legal validity.
This can not only make it vastly easier to deal with the likes of mortgage lenders who might otherwise be very reluctant to take a person’s name off a mortgage, but can have tax benefits too, especially with regard to Stamp Duty and possibly Capital Gains Tax.
Tenants, landlords and divorce
Ideally, tenants should not even be aware that the divorce is happening, but if it results in a property being sold, then obviously they will need to be made aware.
Depending on their situation, they may be perfectly happy to be able to move on. If they are not, however, then the landlord will need to go down the standard eviction route.
Some tenants may actually request this as being evicted through no fault of their own can be helpful from the point of view of getting social housing. It’s unclear whether this will remain the case if the “no-faults” eviction route is ended.
Kerry Smith is the Head of Family Law at K J Smith Solicitors. K J Smith Solicitors are experienced family solicitors in the Thames Valley area specialising in family mediation, estate planning and divorce and separation.