How Property Is Divided In An Essex Divorce

Divorce can be a highly emotional time in life, and you’ll undoubtedly have many questions about how the process works and what your future could look like. 

The leading thought on most people’s minds is: how is property divided during a divorce, and what am I entitled to? This can be even more pressing if children are involved in divorce proceedings, as you want to make sure they’re cared for in the long term.  

As leading family and divorce solicitors based in Essex, we’ve helped many couples to navigate the complexities of divorce. Let’s break down exactly how your property and assets might be divided, and what you can expect to receive on the other side of proceedings. 

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Dividing property during divorce: how is everything split? 

The first thing to note is that assets and property are not often split 50/50 during a divorce. While this is the baseline that most people assume courts work from, UK legislation is actually much more nuanced than you might expect. 

This is because of the Matrimonial Causes Act 1973, which assesses what would be the fairest split for all parties involved. Particularly when children are involved, it’s the court’s role to ensure that they are provided for in a way that allows for a secure future. 

Some of the factors that courts will consider when dividing property during a divorce include: 

• Income and Earning Capacity: They’ll assess what each party earns now, what they expect to earn in the future, and how that might affect the individuals involved once a split takes place
• Standard of Living: Based on that income, the court will consider the family’s standard of living before a breakdown and how that could be sustained (though it will inevitably change following divorce proceedings) 
• Details of the Marriage: For marriages that last many years or decades, there’ll be more assets to divide, which can affect the length of proceedings and the outcome for everyone involved
• Contributions: Just because one party earns all the money and the other cares for the children, doesn’t mean everything should go to the former. Contributions of all forms are considered as part of the division

Is inherited property divided in a divorce?   

Generally, inherited property and assets won’t be divided as part of a divorce because they’re considered non-matrimonial assets. Courts will consider two types of assets, and the distinction is usually whether they were acquired during your marriage, or beforehand: 

• Matrimonial assets are things like the family home and joint savings accounts, which were acquired and built up during your time together as a couple
• Non-matrimonial assets can include properties you acquired prior to marriage, or inherited assets and money that was passed down to you 

However, it’s important to note that non-matrimonial assets like inherited property aren’t automatically ring-fenced during divorce proceedings. If matrimonial assets don’t include enough to fairly provide for both parties, then non-matrimonial assets may be included in the interest of fairness. 

This can even be the case for future inheritance that you expect to inherit, but don’t yet have. The best way to protect against this is with a financial consent order, which our divorce solicitors can help you to create so that your future assets are protected. 

Best ways to protect property in a divorce

Ultimately, if assets are needed to ensure that each party receives a fair settlement, you can’t prevent property from being considered as part of divorce proceedings. 

That said, there are a few steps that you can use to protect your assets in a way that makes it unlikely they will be divided in your divorce. 

Create a trust

A trust is a way to ensure that named beneficiaries receive assets, and is often used alongside a Will as part of a comprehensive estate plan. If you’re concerned about property being divided in a divorce, then placing it into a trust can safeguard your assets during proceedings. It’s not watertight, but courts will be less likely to consider trusts than other parts of your estate.  

Pre-nuptial or post-nuptial agreements

Although pre-nuptial agreements aren’t legally binding, they can form a very strong foundation for the court to refer to. Couples outline exactly what belongs to each party prior to a marriage, which can then be referred to as part of divorce proceedings. This eliminates the need for guesswork, although changes in circumstances may affect how these agreements are viewed – particularly if they’re created many years before a marriage breaks down. 

Gifts and loans

If a couple receives a gift as part of their marriage, such as a wedding present, then this tends to be considered a matrimonial asset that will be considered in divorce proceedings. However, if money is given to an individual as a loan, then it will typically be protected from division. 

Receive expert advice from divorce solicitors 

If you’d like tailored advice on how your property may be divided during a divorce, we’re here to help. Our Essex divorce and separation solicitors can work with you to understand your situation, and plan a strategy that protects as much of your property and assets as possible. 

Get started by calling our team on 01206 733733, emailing us at enquiries@sparlings.co.uk, or visiting our offices in Colchester, Manningtree, or Frinton-on-Sea.