Property

When parties have been married the court has broad powers to redistribute assets during financial remedy proceedings. There is generally little relevance attached to whether the matrimonial home is in joint names or in the name of one party, it will be usually be treated as a family asset.

When there is more than one property, perhaps a matrimonial property and a non-matrimonial property the courts will generally not make any strict determination in the parties respective claims of proprietary interests in a property. However, the timing and manner of acquisition of a property by one of the parties may be noted but the broad brush approach by the court will generally find it unhelpful and unnecessary to take more than a cursory look. During the marriage if there has been considered planning of the distribution of properties it may be a factor but it will still only be one of a number of factors the court will take into consideration.

Where there are third party interests in a property or where a spouse is bankrupt then the court will have to determine the property interests of the husband and wife in a formal way.

The meeting of housing needs is not the sole purpose of a property order, a property order being an order where a transfer of property is made to the other party. Property is normally land or a house but can be personal property such as shares, chattels (possessions including contents) or perhaps the dog.

Housing needs are a high priority and particularly when finances are low when the property may be the only asset therefore this is usually seen as appropriate to consider as a preliminary. The primary carer’s need to make a home for the children is important but it was important, albeit of lesser importance that the other party should also have a home where the children could enjoy time with that parent. When assets are severely limited then the courts may see it that the needs of one of the parties have to give way to the needs of the family as a whole and the requirement to treat the welfare of children as the first consideration. This does not mean that the former matrimonial home should be continued to be lived in, if the primary carer and the children can be satisfactorily rehoused in a lower cost home and then releasing capital for the other parent, this might be an appropriate option.

Occupying a property with the children does not give sole ownership to that party, various options are available if immediately selling the former matrimonial home is not regarded as appropriate.

An outright transfer is an order where one party transfers their interest in a property to the other party. It is important to note that if the property is mortgaged then the party taking over sole interest in the property should secure the release of the co-owner from the mortgage, otherwise the mortgagee (bank) could still hold the party who has transferred their interest (to the other party) liable under the mortgage covenants.

A transfer subject to charge is where a sum of money in favour of the party relinquishing their interest in the property would be required on a fixed date or a named event or death or remarriage or the children attaining a certain age. These monies could be in the form of a fixed amount or a percentage of the sale of the property.

A mesher order enables the former matrimonial home to be sold at a later time, usually when the children are no longer dependent. A martin order enables the former matrimonial home to be sold at a time some time after the children are no longer dependents. Both mesher and martin orders are relatively unusual orders for the court to make.

If the property is under a tenancy agreement (private sector) then these are normally shorthold tenancies which have covenants within the agreement stopping an assignment or are of a short period so will not be worth the court transferring. Tenancies involving the local authority or social housing are more likely to be able to be transferred to one party by the court but the existing agreement would have to be checked carefully, the position not always being readily clear.

When properties may have to be sold within financial remedy proceedings then an order for sale is available to the court.

In Schedule 1 applications under the Children Act 1989 (parties never married) for the minority or until full-time tertiary education a property can be settled for the benefit of children.