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  • Writer's pictureEddison Cogan Legal Team

Property division in the divorce of married couples and the separation of cohabitants

Updated: May 13

 Property division is an important issue in the divorce of married couples and the separation of unmarried couples, and it can be complicated to navigate.  


Married Couples 

Divorce is an emotional and stressful process, and one of the most complex issues to resolve is dividing the property and assets accumulated during the marriage. In the UK, the process of dividing property in the divorce of married couples is governed by the Matrimonial Causes Act 1973. 


The first step in dividing property in divorce is to determine what assets are considered part of the matrimonial pot. This includes all property, income, and assets acquired by either spouse during the course of the marriage, regardless of whose name is on the title or account. It may also include assets acquired before the marriage or through inheritance, depending on the specific circumstances. 


The court will consider a number of factors when dividing the matrimonial pot, including the length of the marriage, the financial needs and resources of each spouse, the standard of living enjoyed during the marriage, the contributions made by each spouse (both financial and non-financial), and any children involved. 


In some cases, the court may order a clean break settlement, in which all marital assets are divided and each spouse walks away with their own property and assets. In other cases, the court may order a lump sum payment or ongoing spousal support to ensure that each spouse can maintain a reasonable standard of living. 


There are several steps that individuals can take to protect their assets in a divorce. First, it is important to keep detailed records of all assets and financial transactions. This includes bank statements, investment records, and receipts for major purchases. 


Individuals may also consider entering into a prenuptial or postnuptial agreement, which can outline how assets will be divided in the event of divorce. These agreements are not always enforceable, but can be useful in certain circumstances. 


In addition, it is important to consult with a family law solicitor who can provide advice on the best course of action for protecting assets in divorce. A solicitor can also represent individuals in court and negotiate settlements on their behalf. 


Finally, it is worth considering alternative dispute resolution methods such as mediation or collaborative law. These processes allow individuals to work together to create a mutually acceptable agreement for dividing property and assets, without the need for a court decision. This can save time, money, and emotional stress for all parties involved. 


In conclusion, dividing property in divorce is a complex process that requires careful consideration of many factors. By taking steps to protect assets, consulting with a family law solicitor, and considering alternative dispute resolution methods, individuals can navigate the process more effectively and come to a fair and satisfactory resolution. 


Unmarried Couples 


In England and Wales, for unmarried couples who are separating, the process of dividing property can be complicated by the fact that  there is no legal framework specifically governing the division of assets in this situation. 


When a couple who are not married separate, each individual retains ownership of their own assets, even if those assets were acquired during the relationship. This means that in the absence of an agreement between the parties, any jointly owned property will be divided according to each individual's share of ownership. For example, if a house is in joint names, the property will be divided equally unless the couple has agreed to a different split. 


If the couple cannot agree on how to divide the property, they may need to seek legal advice and take the matter to court. The court will consider several factors when deciding how to divide the property, including: 


  • The length of the relationship 

  • The contributions made by each party to the relationship, both financial and non-financial 

  • The needs of any dependent children 

  • The standard of living enjoyed during the relationship 

  • The future financial needs of each party 

It is important to note that in England and Wales, unmarried couples do not have the same legal rights as married couples, regardless of how long they have been together. Therefore, it is advisable for unmarried couples to consider creating a cohabitation agreement to outline how property and assets will be divided in the event of a separation. 


A cohabitation agreement is a legally binding document that sets out each party's financial responsibilities and outlines how assets will be divided if the relationship ends. This agreement can help prevent misunderstandings and disputes between the parties and ensure that each individual's interests are protected. 


Another option for protecting assets is to consider putting property and assets in one party's name only. This can be done through a declaration of trust or a prenuptial agreement, which can help protect assets acquired prior to the relationship or inherited during the relationship. 

In conclusion, property division between unmarried couples can be complex and is not governed by the same legal framework as married couples. It is important for unmarried couples to seek legal advice and consider creating a cohabitation agreement or other legal documents to protect their interests and assets in the event of a separation. 

 

 

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