• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
We have moved! Find out more and read our Covid-19 update.
Edinburgh 0131 202 7516
Glasgow 0141 404 0436
  • Home
  • Blog
  • About Us
  • Testimonials
  • Contact Us
  • Fees

Gibson Kerr

Personal, Family Law & Property

Edinburgh 0131 202 7516
Glasgow 0141 404 0436

Make an enquiry

We will call you back

  • Divorce & Separation
    • Divorce in Scotland
    • Separation Agreements
    • International Divorce
    • Cohabitation Rights Scotland
    • Dissolution of Civil Partnerships in Scotland
    • How Can I Resolve My Divorce Dispute?
    • Fixed Fee Family Law Promotion
  • Prenups & Cohabitation
    • Cohabitation Agreements
    • Civil Partnership Agreements
    • Prenuptial Agreements
    • Postnuptial Agreements
  • Child Law
    • Child Residence & Contact Scotland
    • International Relocation of Children
    • Adoption
    • Child Abduction
    • Dispute Resolution Options
    • Hague Convention
    • Education Law
  • Wills & Estate Planning
    • Intestacy
    • Wills & Will Writing
    • Executries
    • Living Wills
    • Unmarried Couples’ Rights on Death
    • Claims on Inheritance by a “Common Law Spouse” (Cohabiting Partner)
    • Probate in Scotland
    • Power of Attorney
    • Guardianship Orders
    • Intervention Orders
    • Estate Planning
    • Cost of Care
    • Trusts
    • Foreign Estates with Assets in Scotland
    • What Happens When Someone Dies in Scotland?
    • Fixed Fee for Wills and Power of Attorney
  • Financial & Tax
    • Financial & Tax Planning
    • Inheritance Tax
    • Insurance Advice
    • Settlement Agreements
  • Residential Property
    • Properties for Sale
    • Buying Property
    • Selling Property
    • Videos: Buying and Selling Property
    • Joint Purchaser Agreements
    • Equity Release
    • Mortgage Advice
    • LBTT / Stamp Duty Scotland
    • Property Transfers
    • Home Reports
    • How to Present Your Property for Sale
    • Boundary Disputes Solicitors
Blog

Property in Divorce Actions

23rd March 2021 by Fiona Rasmusen Posted Under: Divorce

Property in divorce

It is often the case when couples are separating or divorcing that there is property involved. This is normally a matrimonial home but it can include other property owned by one or both of the parties. In many cases the matrimonial home is owned jointly by the parties with a mortgage secured over the property. We are frequently asked a range of questions about property in divorce, in particular in relation to the matrimonial home. We have tried to address these questions here.

Can divorce be granted even if the matrimonial home has not yet been sold?

The answer to that is ‘yes’. However, it is important to ensure arrangements for any heritable property (that is houses or land) are in place before divorce is granted. This is the case where the properties are owned by only one of the parties or jointly. These arrangements can be in the form of a signed agreement between the two parties agreeing what is to happen in relation to all of the assets including any heritable property. If there is no agreement signed then it will be necessary for a court to make an order about the division of assets (including heritable property) before the divorce is granted. It is not normally possible to go back to a court after divorce has been granted to ask for orders relating to a property. So one party may lose out if the divorce is granted before a property is dealt with.

If there is a legally binding agreement in place providing what is to happen to the matrimonial home, the parties can then get divorced even if the house has not yet been sold. The contract between the parties will continue to be enforceable after the divorce and at that time the terms of the agreement can be carried through in relation to all assets including the matrimonial home. Sometimes parties agree that the matrimonial home is to be sold at some point in the distant future, perhaps when one of the children has left school. This does not prevent the parties from divorcing.

Can I sell my house before divorce?

If you own a property in your own name you can sell it at any time. If it is a house that has been used as a matrimonial home your spouse will likely have occupancy rights. There may be a difficulty in selling such a property without your spouse’s agreement.  If you own another property such as a buy to let, you can sell that property before or after divorce. If it is a matrimonial asset you will have to be careful that you keep enough money in reserve so that you can meet any claim that might come later from your spouse.

How is a house divided in a divorce?

The default position in Scots Law on divorce is that all matrimonial assets are divided equally. There is sometimes an argument for a departure from equal sharing. So, for instance, if one of the parties has introduced money into the house which came from a gift from a third party (often a parent) or if they inherited money and used that money to buy the house, then they can argue that the sale proceeds should not be divided 50/50.

Sometimes when couples separate one party buys the other party out of the house. It is important in these circumstances that an accurate valuation of the property is either agreed or obtained from a surveyor. This will demonstrate that both parties are being treated fairly. If one party is going to buy the other out they may need to take on a mortgage or extend the existing mortgage so that they can raise the funds to pay to their spouse.

Issues often arise about who should pay the mortgage during the parties’ period of separation while things are being negotiated or litigated. A mortgage is a joint debt and each party has an obligation to pay it. However, sometimes if one person has moved out of the house a situation arises where they cannot afford to pay even their half share of the mortgage if they are also having to pay rent to live elsewhere.

These issues are often complicated and require careful consideration and negotiation.

You may also be interested in reading: How to Start Divorce Proceedings in Scotland and Can I get a quick divorce in Scotland?

If you have further questions or if any of these issues affect you at the moment you should take legal advice. Please contact us or call us on 0131 226 9161.


DISCLAIMER

The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.

Related

Karen Wylie Accredited Mediator

Family Law experts push to become mediation market leader

28th April 2022

New Office Underpins Gibson Kerr Growth Ambitions

New Office Underpins Gibson Kerr Growth Ambitions

27th January 2022

Mediation week: what is family mediation?

Mediation Week: What is Family Mediation?

20th January 2022

Primary Sidebar

Blog Categories

  • Careers in Law
  • Child Law
  • Divorce
  • Education Law
  • Elderly Care
  • Executries
  • Family Law
  • Financial & Tax
  • Guardianship
  • News
  • Personal Law
  • Power of Attorney
  • Prenuptial and Cohabitation Agreements
  • Property
  • Property Transfers
  • Separation
  • Trusts
  • Uncategorised
  • Wills

Latest posts

Family Law experts push to become mediation market leader

28th April 2022

Purdie & Co trust Gibson Kerr with Wills and Powers of Attorney

18th March 2022

International Women’s Day #BreakTheBias

8th March 2022

Footer

Edinburgh 0131 202 7516
Glasgow 0141 404 0436

Make an enquiry

We will call you back

Locations

Edinburgh

Family Law, Personal Law
&
Property Law

6 Randolph Crescent
Edinburgh
EH3 7TH

t: 0131 202 7516
f: 0131 557 5215

e: edinburgh@gibsonkerr.co.uk

Open: 8:30-17:00, Monday - Friday

Glasgow

Personal Law & Family Law

100 West George Street
Glasgow
G2 1PJ

t: 0141 404 0436

e: glasgow@gibsonkerr.co.uk

Open: 8:30-17:00, Monday - Friday

  • Family Law
  • Personal Law
  • Property Law
  • Home
  • Blog
  • Disclaimer
  • Cookie Policy
  • Privacy Policy
  • Legal Notice

© 2022 Gibson Kerr · Site by Kate Amann

We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept All”, you consent to the use of ALL the cookies. However, you may visit "Cookie Settings" to provide a controlled consent. See our cookie policy.
Cookie SettingsReject AllAccept All
Manage consent

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
CookieDurationDescription
cookielawinfo-checkbox-advertisement1 yearSet by the GDPR Cookie Consent plugin, this cookie is used to record the user consent for the cookies in the "Advertisement" category .
cookielawinfo-checkbox-analytics11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checkbox-functional11 monthsThe cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checkbox-necessary11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-others11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-performance11 monthsThis cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
CookieLawInfoConsent1 yearRecords the default button state of the corresponding category & the status of CCPA. It works only in coordination with the primary cookie.
viewed_cookie_policy11 monthsThe cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.
Functional
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytics
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
CookieDurationDescription
_ga2 yearsThe _ga cookie, installed by Google Analytics, calculates visitor, session and campaign data and also keeps track of site usage for the site's analytics report. The cookie stores information anonymously and assigns a randomly generated number to recognize unique visitors.
_gat_gtag_UA_110715042_11 minuteSet by Google to distinguish users.
_gcl_au3 monthsProvided by Google Tag Manager to experiment advertisement efficiency of websites using their services.
_gid1 dayInstalled by Google Analytics, _gid cookie stores information on how visitors use a website, while also creating an analytics report of the website's performance. Some of the data that are collected include the number of visitors, their source, and the pages they visit anonymously.
CONSENT2 yearsYouTube sets this cookie via embedded youtube-videos and registers anonymous statistical data.
Advertisement
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
CookieDurationDescription
_fbp3 monthsThis cookie is set by Facebook to display advertisements when either on Facebook or on a digital platform powered by Facebook advertising, after visiting the website.
fr3 monthsFacebook sets this cookie to show relevant advertisements to users by tracking user behaviour across the web, on sites that have Facebook pixel or Facebook social plugin.
IDE1 year 24 daysGoogle DoubleClick IDE cookies are used to store information about how the user uses the website to present them with relevant ads and according to the user profile.
test_cookie15 minutesThe test_cookie is set by doubleclick.net and is used to determine if the user's browser supports cookies.
VISITOR_INFO1_LIVE5 months 27 daysA cookie set by YouTube to measure bandwidth that determines whether the user gets the new or old player interface.
YSCsessionYSC cookie is set by Youtube and is used to track the views of embedded videos on Youtube pages.
yt-remote-connected-devicesneverYouTube sets this cookie to store the video preferences of the user using embedded YouTube video.
yt-remote-device-idneverYouTube sets this cookie to store the video preferences of the user using embedded YouTube video.
Others
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.
SAVE & ACCEPT
Powered by CookieYes Logo