For separating couples, married or cohabiting, the division of property and financial arrangements (Ancillary Relief) are often the 'major bone of contention'. The home (commonly known as the Former Matrimonial Home), is usually the most valuable asset owned by the couple, and can be the most contentious asset to deal with. For some people it is possible to come to an amicable settlement without the requirement or help of solicitors, other than to confirm the fairness of the settlement agreed and prepare the necessary court documentation. Unfortunately, the process can become very acrimonious, confrontational and lengthy, leading to legal costs for both parties, and lengthy court proceedings.
There are various ways of dealing with the former matrimonial home within divorce proceedings. For example, it can be agreed to sell the home and split the equity between the parties; outright transfer into the sole name of one of the parties; or a transfer into the sole name of the party with care of the children until one of several triggering events occurs - most usually until the youngest child reaches 18 or finishes full time education, at which time the other party gets their share of the equity.
The issue of the former matrimonial home is normally dealt with within the ancillary relief proceedings, where, among other things, the parties’ finances, needs, contributions, and future prospects are examined. However, the recent case of Miller-Smith -v- Miller-Smith suggests that this is not necessarily the case anymore. In that case the High Court was confronted with the dilemma of whether the sale of the home should be resolved within an application for ancillary relief, or in the very unusual circumstances of the case, whether the home should be sold before the divorce was finalised. The application was brought under the Trust of Land and Appointment of Trustees Act 1996, the relevant section of which gives the Court discretionary powers to make “such order as it thinks fit“. The Court departed from the norm and agreed that the home should be sold outside of the ancillary relief proceedings. This decision was later upheld by the Court of Appeal.
What is clear is that the present anachronistic divorce system is becoming more complicated and in many ways more confusing for separating couples. At Wellers Law Group LLP we have experts who can guide you through the complexities of the divorce laws by giving you sound, practical and impartial advice.
If you are contemplating separation or divorce It is essential that you obtain proper legal advice as soon as possible in order to ensure you are aware of your rights regarding your home and custody of your children where this is relevant.
Contact us on 0208 464 4242 or email your enquiry to familylaw@wellerslawgroup.com
