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Divorce/separation

Here you'll find divorce help and support from other Mners. For legal advice, you may find Advice Now guides useful.

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Original poster

Is my flat classed as a marital asset

57 replies

Scampi89 · 12/05/2022 15:58

Before I met my husband, I bought a flat which I lived in. At no time was this our marital home. After we got married, I rented it out and I have been solely responsible for covering mortgage payments, maintenance charges, ground rent etc. it is still rented out and any income comes to me, although because I was in negative equity for a while, I haven’t really made much money from
the rent.
14 years later, we are now getting divorced. Husband wants 50% of our current family home (house). Today I suggested this might not be the case as the kids will be living with me so I might get more. He sort of implied he’s doing me a favour by not asking for any of the flat.
I thought he wasn’t entitled to any of that anyway as it’s mine, he’s never lived there nor been responsible for any of its costs.

who is right?

OP posts:

AntarcticTern · 12/05/2022 15:59

As far as I know everything goes into the pot, including your flat. But see a solicitor for better advice.

LadyGardenersQuestionTime · 12/05/2022 16:02

I'm not a solicitor but as far as I know yes the equity on that flat would be classed as a martial asset. When you marry all your assets go into one pot. If it had been a short marriage and/or no children then it might not be so clearcut but as you've got children then I think it's most unlikely it would not be classed as a marital asset. That bit in the vows "all that I have I give to you" is actually legally binding, it turns out. Same as his pension, which he will have had sole responsibility for, that's a marital asset. Etc etc.

sunshinesupermum · 12/05/2022 16:06

Your flat is classed as a marital asset. So your husband IS doing you a favour in not asking for any of it. BTW don't forget pension splitting.

ResentfulLemon · 12/05/2022 16:13

The length of your marriage and the fact you have children means your husband probably is doing you a favour.

You might be able to get a solicitor to fight tooth and nail to have the flat excluded as a marital asset, but that's probably an expensive option with a low success rate.

PatriciaHolm · 12/05/2022 16:17

Yes, basically. Are you getting legal advice? It sounds as if you need it.

Original poster

Scampi89 · 12/05/2022 16:21

Yes I will get legal advice, I just wanted to know if I was right or wrong.
So he could be entitled to half of a property that he hasn’t spent a single penny on, never lived in, and is in my name only?

OP posts:

ResentfulLemon · 12/05/2022 16:24

Scampi89 · 12/05/2022 16:21

Yes, just like you're entitled to half his pension that you've never paid a penny into nor has your name ever been attached to (the main reason I was hesitant to marry my husband - my pension is enviable!)

Legally you are considered to be one financial entity that needs to be split fairly even if the reality is separate finances that are pooled appropriately.

Twizbe · 12/05/2022 16:25

Scampi89 · 12/05/2022 16:21

Yes. As when you marry it becomes a joint asset.

It sounds like he also sees this as yours and that's why he said he wouldn't go after half of that. You might have to give him more of the family house, especially if you could live in the flat yourself.

Dogsandbabies · 12/05/2022 16:28

I have been where you are OP and he has every right to claim 50% of your property. I'm the same way he pays for his pension that you have made no contribution towards ever but are entitled to half.

My advice is to sit down with your lawyer and work out what is most beneficial to you. If you have very little equity in the flat then it may be better that he gets 50% and you go after some other assets like savings or pension.

Thursday37 · 12/05/2022 16:38

Yes, I have a similar set up but we got an agreement done some years ago to ring fence my prior home as not a marital asset just in case. So my DH would have a hard time rescinding that (although he could try).
He was able to convince the insolvency service that he had no claim on it during his bankruptcy, so I’m reasonably confident it would stand up to a divorce. Lets hope it’s never tested!!

You are lucky he’s not going after it. Morally he shouldn’t but legally he can.

Original poster

Scampi89 · 12/05/2022 16:58

Thanks everyone
trying to keep this as amicable as possible.
it’s so hard though as I now need to by a new family home for me and the kids

OP posts:

DenholmElliot · 12/05/2022 17:06

I'm with your husband on this one. He IS doing you a favour not coming after the flat.

Neverreturntoathread · 12/05/2022 17:11

Definitely ask a lawyer. Husband doesn’t need to know you’ve taken legal advice. As I understand it, everything goes into the pot and then the court decided how it gets divided up, with the starting point being 50:50 (but depending on lots of stuff that the lawyer can explain but I don’t know).

Woukd it be possible to sell the flat and use the money from that to buy out his 50% stake in the family home? Assuming he even has a 50% stake? Again one for the lawyer…

SheWoreYellow · 12/05/2022 17:14

You're not in Scotland are you? I’m fairly sure it would be not a marital asset in Scotland.

Starseeking · 12/05/2022 17:20

All assets go into the pot on divorce in England.

Does he have a pension of value similar to the flat that you could bargain with him to cancel out? Then you could just haggle over the main house, which if the DC are staying with you for the majority of the time, you should get more of i.e. awarded more than 50%.

bertieb7 · 12/05/2022 17:21

He will definitely have a claim on it as it goes in the pot but I believe he is entitled to 50%of the equity gained during the marriage. Considering it was in negative equity I guess this could be all of it. definitely speak to a lawyer but that is my understanding!

NarcissasMumintheDoghouse · 12/05/2022 17:21

My understanding (from a friend's situation) is that assets accrued before marriage aren't counted as marital assets on divorce. But you flat may have accrued value since you married, and so he might have a call on the increase. But please see a solicitor, rather than relying on MNetters, who don't know your precise circumstances.

TheSnowyOwl · 12/05/2022 17:23

Are you in England? It is a marital asset if so.

Did you pay equally for the house you are in now, including deposit? Don’t assume your children will allow you a greater share of that house either.

Crazykatie · 12/05/2022 17:27

No guarantees, if he had nothing a court would say you had to meet his “needs”, if he is happy to disregard it great, 50% of the house plus maintenence of the children may be a good deal.
BTW have either of you got pensions that may be relevant.

Ohsugarhoneyicetea · 12/05/2022 17:31

It likely is on the table, but much depends on how much equity you have all together and what your respective housing needs are. How much you each earn and can therefore use to build your financial situations back up is also a consideration. How much is in each of your pensions and what each have set aside for retirement.

If you will be primary resident parent your housing needs are likely to be considered greater than his. So you could get 60% even 70% of the family home. What is the equity in the flat compared to the equity in the family home. Or if he has a large pension you could offset other assets against that. You need the full financial picture to get proper advice on what is fair is my point.

Soontobe60 · 12/05/2022 17:31

Scampi89 · 12/05/2022 16:58

Thanks everyone
trying to keep this as amicable as possible.
it’s so hard though as I now need to by a new family home for me and the kids

And luckily you have 2 properties to sell in order to fund your new homes. He also needs a home suitable for him and his kids.

BernadetteRostankowskiWolowitz · 12/05/2022 17:53

Today I suggested this might not be the case as the kids will be living with me so I might get more

Why will they be living with you? You won't get more than 50% of the house - but you may get an agreement to remain in the family home until the youngest is 18 (in certain circs). But you would need to pay the full mortgage.

Watapalava · 12/05/2022 18:01

Yes flat is in pot 100% (had exact same experience)

50:50 split is more normal as most men go for 50/50 contact to avoid any favour on either side . So you won’t be entitled to stay in house or have more of it than him given you could slot kids equally

Watapalava · 12/05/2022 18:02

Op it sounds like your basing some of your thought on old advice

now most mums don’t even get maintenance as dads go for kids 50:50

EmilyBolton · 12/05/2022 18:08

Scampi89 · 12/05/2022 16:21

I have posted here many times before. The courts use about 10 criteria when making financial agreements. Any consent order you can agree on needs to meet those criteria first. Anything in excess of that is generally considered 50:50 as a starting point to be negotiated.
the assets you both have individually and jointly are all considered “matrimonial assets”. But any debt you have individually or jointly is also “matrimonial liabilities” . The assets include property, cash, income, investments, pensions and any other assets of value. The court requires you to list these in the D81 form and send to them even if you are applying for a consent order rather than asking the court to make the decision (which you should avoid if you don’t want to both end up even worse off ). Only once you have both made a full financial disclosure to yourselves (it goes to court, legally signed by you, after decree nisi or whatever it is called now) can you both start to negotiate what you each should have- and that is why you need to know these 10 criteria first…those override all other factors . So inform yourself on these and understand what they mean to you. www.mediateuk.co.uk/the-ultimate-guide-to-financial-settlement-on-divorce/
I have experience of trying to get over the dread, fear, and rage of having some “my” assets taken away especially as I divorced on unreasonable behaviour grounds. It’s not easy or pleasant to have to come to terms with that. You will be angry. But I armed myself with the criteria, got used to what it meant in reality and decided that accepting I was going to loose some of what I felt I “shoud” get was in best interest of getting a easy and cheap divorce given fighting it would be, in reality, unlikely to change the outcome massively in terms of “shares” we got, but we’d both end up worse off due to the solicitor bills involved. At £200-250 per hour every second you have a solicitor even thinking about if you could get more money it is costing you. Think very carefully about this. Sure you need advice if your situation is complicated ( business or pension sharing order etc) but generally most people armed with these criteria can figure out the most likely outcome in reality.

you do have to accept, no matter how painful, that you will end up worse off. As will your ex. Unfortunately that’s a significant point of marriage - 2 of you combine as a unit, and overall become better off as a result. It doesn’t make it easy. But try to park the anger and rage and be realistic, and then go into negotiations armed with what you really want in terms of what you should get not what you think you “deserve”.

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