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Courts deciding the fate of the former marital home

This article is part of
Guide to Mortgages and Divorce

There are many modern ways of helping a couple reach an amicable solution to the division of assets, without having to let the courts decide.

Keith Churchouse, Chartered and Certified financial planner of Chapters Financial Limited, says mediation through a collaborative approach should be considered before leaving your financial future in the hands of the courts.

Mr Churchouse says: “More detail on these positive approaches can be found through the organisation, Resolution. Their website is www.resolution.org.uk.

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“The decision on the matrimonial home and its division of equity/asset, along with other assets of the marriage, such as pension values, is usually agreed before being presented to the court to be sealed.

“They will normally check that the division is reasonable, with the protection of any children as a paramount importance of their agreement.”

As a general rule, Jeff Knight, director of propositions at Castle Trust, says if there are no children the courts will decide that the property will have to be sold.

Where children are involved, the court can direct one partner to service part or all of a mortgage obligation until all of the resident children reach 18 or finish full-time education.

Mr Knight says: “English courts do not make moral judgements, only legal ones. Each judgement will depend on the circumstances of the case.

“The judge will consider the history of the marriage and the pleas which each side enters. For example, a spouse who has never worked and who can demonstrate that they have sacrificed their career to support their partner in developing his/her career can successfully secure a share of the other partner’s future earnings/pension income as part of the settlement.

“This is often traded off against a larger share of the existing assets such as the house in the interests of a clean break.”