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.
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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.
