What Else Will Getting Divorced Affect?13th Jan 2022
There’s More To Divorce Than Ending A Marriage
At a basic level, what most people think of as ‘getting divorced’ actually comprises two distinct and separate legal processes:
- divorce – the legal ending of your marriage
- resolving finances – dividing up the assets and liabilities of your marriage fairly.
But anyone with children will know there’s much more to it than that. You and your former partner will need to agree child arrangements (what people used to call ‘child custody’ or ‘residency’) including:
- where and with whom your children will live
- when, where and how often the other partner can see the children (commonly referred to as ‘contact’ or ‘visitation rights’)
- what will happen with regard to school holidays, trips abroad and at special times such as Christmas.
And even then, there’s still much more to think about. Divorce has far-reaching consequences – some obvious, some less so. They include:
- where you will live (if not in the family home) – moving out and buying another property (or renting one)
- your will – and powers of attorney if they are in place
- your business – whether or not your former partner was involved in running it.
This requires a holistic approach. You’ll need not just divorce solicitors but also the help of their colleagues who can offer specialist advice on conveyancing (and other residential property matters), wills and probate – and potentially commercial law.
Where Will I Live After I Get Divorced?
Divorce inevitably means changing the living arrangements for the family home. There is a range of options, which may include purchasing the other person’s financial interest.
This is commonly referred to as a transfer of equity. However, specialist advice will be needed regarding this – especially when a mortgage is involved.
In some circumstances, you may decide to sell the family home with both of you downsizing to smaller properties. Especially if your grown-up children have already moved out. Other circumstances that can trigger this scenario are relocation or the need to repay debts.
Buying A Flat After Divorce
Buying a new home after divorce usually means having to live somewhere smaller (but easier to manage). You may be moving from a three- or four-bedroom house to a one- or two-bedroom flat (unless you’re moving to a less expensive area).
And if you’re buying a flat, you don’t just need to think about conveyancing, you’ll need to worry about the lease you’re signing – notably how many years it has left to run. The 80-year mark is a crucial milestone. Once your long lease drops below 80 years, buying the freehold and extending the term of the lease will become more expensive.
Residential leasehold property law can be complicated, especially if you’re more used to living in a freehold property. There are lots of issue to consider: lease length, covenants (rules of the property), who will manage the property…and a host of other potential pitfalls, many of which you may never have encountered before.
And even when you buy the freehold of your leasehold property, you’ll still have a lease (and it could still need extending). So it pays to take legal advice from a solicitor who specialises in residential leasehold matters. Otherwise the hidden costs can be high.
There can be tax implications when dealing with property on divorce and separation. It is essential to get specialist tax advice at an early stage. We are not accountants and are not permitted to give financial advice, but we can assist in using other specialists for this purpose.
Renting A Flat During And After Divorce
Here’s an interesting legal pointer: whether you buy your flat or whether you rent it, you’re still a ‘tenant’ in the eyes of the law.
But there’s a world of difference between:
- a residential leasehold tenant who’s bought a flat and signed a lease for say 90, 100 or 999 years
- an assured shorthold tenant who’s signed a lease to rent a property for six months to a year.
They have different sets of legal rights and responsibilities. And just as a long-lease residential tenant needs a solicitor with specialist legal knowledge, so does an assured shorthold tenant – they need a landlord and tenant solicitor.
Do You Have A Will? If So, Have You Reviewed It?
It is likely you may not want to leave anything to your former partner when you die. This means you’ll need to review your will.
What if you don’t have a will? This is a very risky situation…
If you die without a will – and you haven’t completed the divorce process – then your former partner could inherit everything because they’re still legally married to you. Under intestacy rules, the husband, wife or civil partner keeps all assets up to £270,000 and all personal possessions (whatever their value).
So the minute you separate, get a will or review your existing one. Otherwise your children and other relatives could lose their inheritance if the unthinkable happens.
And remember…remarrying automatically renders any existing will null and void. So wills should always be uppermost in your mind – before, during and after divorce.
Is Your Inheritance Safe From Your Former Partner?
More wills are being contested these days. This is due partly to the increase in remarriages and blended families. Demand for this form of litigation has also been fuelled by various media stories involving celebrities mounting legal challenges.
Like leasehold property, wills and probate is another complex area of the law. Especially if the estate in question involves substantial assets – or trusts (though trusts don’t have to be complicated and they’re not just for the wealthy).
Wills solicitors have special qualifications such as membership of STEP (the Society of Trust and Estate Practitioners). This involves two years of extra study and exams…on top of the normal six years it takes to become a solicitor (law degree, Legal Practice Course, seats of training at a law firm).
And even then, it takes a special kind of solicitor to specialise in contested wills. They will have a background in litigation – and will have undergone training to become a member of the Association of Contentious Trust and Probate Specialists (ACTAPS).
Need to defend your inheritance from a legal challenge by your former partner? Or do you believe that you’re legally entitled to a share of their inheritance? Get expert legal advice on disputed wills.
What Will Happen To Your Vulnerable Loved Ones?
Is your former partner named in any powers of attorney that affect your family?
Do they still have the legal right to take financial and health-related decisions on behalf of someone lacking the mental capacity to decide matters for themselves?
If so, the person who took out those powers of attorney may wish to review them and revoke your former partner’s rights as a deputy.
But what if it isn’t that simple? What if the powers of attorney were taken out and registered some time ago…and the person to whom they apply has now lost their mental capacity? You may need to apply to the Court of Protection to have a deputy removed and replaced.
Is Your Business Safe In A Divorce?
If you’re self-employed or a shareholder in a company, it’s not only your personal finances that can be divided in a divorce. A business can often be seen as an asset for divorce purposes. This can apply to a range of businesses, including a self-employed sole trader.
Perhaps your former partner is a shareholder in the business. Maybe they were a part-time or full-time employee. They may have handled the bookkeeping while you were out pursuing your trade.
And even if they weren’t involved in the ownership or running of the business, they may have a valid interest in the business. So it pays to speak with divorce solicitors who have access to some commercial litigation firepower as well.
Get Specialist Legal Advice
Getting divorced? Ending your civil partnership? Coles Miller’s Family Department liaises closely with the firm’s other specialist legal teams to ensure you gain the best possible outcome.
Contact Coles Miller Partner Richard Perrins, Head of the Family Department, for expert legal advice on divorce, civil partnership dissolution, children arrangements and securing a fair financial settlement.