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What are your rights to property after separation?

View profile for Amy Foweather
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What are your rights to property after separation?

Assuming you have a registered marriage, the first question is whether or not you entered into a prenuptial agreement, or subsequent postnuptial agreement.

Such agreements are now becoming much more common in a wide range of cases and are not limited to the high net cases they get a reputation for.

The agreement cannot override the court’s broad discretion of the court when applying the factors within the Matrimonial Causes Act 1973, but the agreement, if done properly, is likely to be given decisive weight when considered against those factors and based on the circumstances of your case at the time.

This could, therefore, make all the difference on your rights to any property after separation and whether or not it is all subject to settlement applying the section 25 factors within the Matrimonial Causes Act 1973, or if any claims are limited in accordance with your intentions set out within the nuptial agreement.

Whilst possible that there may be a variation to the nuptial agreement and especially when it comes to safeguarding the former matrimonial home, it is still very likely to limit those claims and especially from the starting point, which is often 50/50.

If you are not married, but cohabiting, the answer will depend on:

How you have registered ownership of the house?

This is important to legally reflect your interest in the house, rather than intending to have an unequal interest, but registering as joint owners.Please ensure you consult your conveyancer solicitor at the time and if necessary a family law solicitor to be sure the correct protective steps are being taken.

Have you entered into a cohabitation agreement?

This is effectively a legally contract which can set out your intentions in relation to property following separation, finances and other factors, such as child arrangements.Again, it is important to be drafted and executed properly, so to be upheld if disputed, so with the assistance of an experienced family law solicitor.

Of course there is much more to consider when entering into or enforcing a nuptial agreement, so please ensure you seek legal advice, as this would be a necessary step to an effective agreement in any event. Similarly, if you are considering a cohabitation agreement, or already have one and want to consider its enforceability following a separation, please consult one of our team.

Our articles are intended for general information purposes only and are not a substitute for professional advice tailored to your specific circumstances. We are always very happy to discuss any plans, issues or concerns you may have and to clarify how we might be able to help. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.