Is my flat classed as a marital asset

[Scampi89]

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?

Thank god I live in a country where we are able to have a pre-nup...

He would have taken me to the cleaners while being a single mum.

A short cost of a solicitor will pay itself back for yourself and for the best of the child(ren).

No this isn’t correct as a criteria the courts use automatically. It may be used if the marriage was of particularly short length, or assets were in excess of the 10 criteria used by the courts (section 25 of act). Yours friends circumstances will have fallen into these circumstances.

My understanding is that the law is very different in Scotland to England.
In England 50/50 is the starting point including everything brought into the marriage.
I believe this isn't the case in Scotland.

A solicitor is a good starting point.

Not could. He IS entitled to his share of matrimonial assets which include all property owned jointly or singularly. Unless the section 25 criteria come into play. See my other post.

You're right. I've been told that property bought before marriage in your name, stays yours in Scotland. It's very much what is built up during the marriage that counts as martial assets.

Starting point is not 50:50. Wish people would stop saying this. The stuff the lawyer can explain is section 25. There are very good simple guides out there by Mediate and Advice now that explain the 10 or so criteria used by the courts that apply FIRST , before the 50:50. It does Not take a lawyer to find these out or explain them. It is not difficult.

you will need a solicitor to help you if you have complex issues to sort like business, pension sharing orders, child maintenance etc. and you will need a solicitor to draw up your draft consent agreement once you (the divorcing couple) have decided between you what you are doing

Yes the flat is a marital asset. Is he not going to have to house the dc too? Sensible thing to do is an equal split of both house, flat and pensions/ investments.

The first thing the court will take a view on is both of your needs, and the needs of any children. If you can both re-home yourselves and have enough funds to support your separate lifestyles, then you stand a better chance of ring fencing than if there isn’t enough money to go round. It sounds as though he’s being quite reasonable.

Or you could sell the flat and use the proceeds to buy his half of the house?

Or you and the dc could move into the flat.

I’m in a similar position. My ex didn’t pay anything into my flat, but he did pay the 25% deposit for the houses we moved to and he has a bigger pension than me, so I figure fair’s fair. We’ll probably be just about quits. Eventually all the money will go to the kids anyway so as long as everyone is comfortable it all pans out in the end. Can you sell the flat to buy him out?

Your phrase “just about quits” …”so long as everyone is comfortable” is a very good summation of the whole of section25🤣. except the law takes a lot longer to say it🤦‍♀️🤷🏼‍♀️

My dad remarried it didn’t work out and after 5 yrs they divorced. Dad had business property, she had a house that she rented out plus savings and pension. The court awarded her nothing extra, she had enough for her “needs” and did not contribute to the business.

Needs come first, in many cases it is 50 50 but not when a lot of assets are involved, Paul McCartney and Heather Mills divorced after a short marriage she claimed £125m. Court decided that her needs would be covered by £25m.

Where I live, and it is not England, your premarital assets are not joint, neither is your inheritance. I would talk to a lawyer asap.

You must take expert legal advice as the flat can be preserved as a separate asset - it depends if it has become `matrimonialised’ or was kept separate.

If both your needs are met from the matrimonial assets then the flat may remain separate. It depends if a needs award from non-matrimonial property has to be considered. An order to simply share non-marital assets, over and above meeting needs, is a very unlikely.

see this case …www.bailii.org/ew/cases/EWHC/Fam/2021/241.html

Yep. Absolutely.
I know this is hard to hear. It will take time to absorb it and get used to this. Unfortunately divorce will leave you BOTH worse off- it’s the kind of point of marriage that it financially benefits you both. I went throw a difficult process getting my head around this and coming to terms with it especially because I was divorcing for unreasonable behaviour. It sure felt like a punishment. It isn’t though- it’s just how marriage works.

You flat is no different from any other asset like a pension that only one of you actually financially contributed to. The courts see that your contributions to joint assets go way beyond who spent what and when…and much more to do with you each contributing to wealth grown or maintained during the marriage.

look at government divorce web site and get hold of forms E and D81, Form E is the full financial declaration, and D81 is summary of your are going for consent order . Both forms list all types of assets that are included. Download them and start to fill them out. You’ll get a much better idea of what your future situation will be once you’ve done that. Also look at the 10 or so criteria the courts use to assess “fair” settlement which is starting point to any agreement. Consent or otherwise. This is not automatically 50:50 as some people insist on stating. Understand those and how they affect your circumstances. You can read thos3 dirtier a on Advice Now site or Mediate sites if you search.

This is not true in England except in a few specific examples. Exception are only where length of marriage is very short or “surplus” assets are very high once “fair” distribution is made based on courts criteria.

It all goes into the marital pot and the starting point is 50/50. That is a starting point and a judge may consider this isn't his property, but what they will be looking at is that both of you are housed satisfactorily and the children's housing is paramount.

I wonder if the flat could be given to your H in exchange for his half of the house? Or you can come to some other arrangement that gives both of you a home, but I think a judge would look primarily at both of you being housed, so your H will probably get 50/50, but your DC must be housed. If he has shared custody, it's even more important that he is housed.

Does anyone know what happens if one party is older and taken his pension so no transfer value any longer but the other party is still under retirement age and has a TV of over half a million? My sister is in this situation. He gets an income of £20k a year now but she earns £50k and has the big pension. Is she likely to have to give up more than half the house to compensate. Sorry to hijack the thread!

I think this is great post, lots of people see divorce as “what is mine is mine but I also want 50% of what you have “, and it should just be a fair(ish) split

I agree it's insane your flat comes into play.

But you seem to want more than 50% of house and also your flat??

Grabby

Most people don't appreciate that marriage is a legal contract until they want to get divorced and break the contract, makes you wonder what other contracts they enter into without reading and understanding the small print. If you want to ring fence assets that a conversation to be had and covered legally before you get married.

My understanding is that it is still possible to do a pension sharing order but you'd need to check the specifics with the pension provider.

I do understand OP to an extent. Common sense tells you that she should keep the flat. However, when she married she essentially gifted 50% to her DH. However no one really tells you that when you get married.

I don't think many wealthy people would get married if they were fully told what happens in a divorce in England.

he's probably right.
just as if you had £xxx,xxx in your bank account when you started living together.
Though, with divorce, almost all things can be part of a negotiation

Depends where in the UK you are. If England, if both of your needs can be met then it could be excluded, but it will likely be included in the pot. Remember its all assets including pensions.

If he had a £1M pension, your house was £500K, flat £100K and your pension £300K and some savings, you'd stand a good chance of retaining most if not all of the house equity and your flat in a fair split if you didn't claim on his pension. Pension doesn't hold same weight as more liquid assets.

If you both have £200K pensions, £200K house and £100K flat then its likely the flat would be included. You could sell your flat and buy him out of his equity in the house though.