Legal considerations after divorce or dissolution

Once you have begun the divorce or dissolution process, there are many other things that you need to consider. You may want to change your name, or decide how to deal with any joint assets or property. You may also need to think about what happens if there are any children or how you should change your will.

It's important to think about any joint assets or assets acquired during the marriage. This can include the matrimonial home, and properties or other assets bought together. When married couples or civil partners purchase property, it's common to purchase the property as 'joint tenants' (also known as ‘common owners with a survivorship destination’ in Scotland). This means that the ownership of the property is not carved out into distinct parts. It is impossible to transfer, sell, or leave in a will part of the property, without the consent of the other joint tenant. For further information read Legal interest and beneficial interest in property.

A solution to joint ownership can be to 'sever the joint tenant' (ie split the joint tenancy into a tenancy in common). Each person can then own distinct shares in the property. This means you can sell your share to your partner, or leave it in your will to whom you wish. To do this in England and Wales, you would need to use a Notice to sever joint tenancy and register this with the Land Registry.

In Scotland, changing ownership from common owners with a survivorship to common owners (what tenants in common are known as in Scotland) is a very complex procedure. You should Ask a lawyer if you want to change how your property is held.

Can my ex-partner force a sale of the home?

Your ex-partner cannot force you to sell the family home. If you can't come to an amicable agreement then the court may order a sale of the family home, but this is not the only option. The property is deemed to be owned jointly as part of the matrimonial assets and therefore neither of you can force a sale of the home.

What happens to any assets that were gifted during the marriage or civil partnership?

Any assets that were gifted during the marriage are considered unconditional gifts. This means that it is assumed that these gifts were given with no other consideration and that it was intended for the other person to keep the benefit from it. These can include an engagement ring, a wedding ring, any other jewellery, cash gifts and other tangible possessions. It's unlikely a person can ask for these back once a divorce has been finalised, as these gifts would be considered to belong to the other party.

What happens to any assets that we bought together during the marriage or civil partnership?

Any assets acquired jointly during the marriage or civil partnership are assumed to be owned in equal shares. This means that if there is no proof as to who bought the asset and with whose money, then the courts are likely to infer that the asset is owned equally. It will be up to the individual parties to either split the assets equally or negotiate who will get what. You may find that a family mediation service is required to help the parties, if there is disagreement over a particularly valuable asset, eg a car, a pet or expensive furniture . For further information read Mediation.

When you marry, any will that you had prior to getting married will be automatically revoked. However if you created a will before getting divorce then this creates a number of problems. Divorce has the effect of completely removing the former spouse or civil partner from the will. Therefore if they were given a large part of the estate to inherit in the event that you died, then there would be no one to inherit the assets. These assets would then pass back into the deceased's estate. This may make your will unworkable, and therefore it's always advised to either review your existing will after a divorce or create a new one.

There is a will 'in contemplation' of your divorce or dissolution. This means that your will remains valid from the moment you start divorce or dissolution proceedings and continue to be valid after the divorce and will contain provisions dealing with what happens to your assets on divorce or dissolution. If you want to write a will 'in contemplation' of your divorce or dissolution, Ask a lawyer.

Can I change my surname back to my maiden name?

Some people will take their spouse's surname or may take a double-barrelled name to accommodate both single names. In order to change your surname and revert back to your maiden or single name in England, Wales or Scotland, you can complete a Statutory declaration of name change. You may want to think about completing a Pre-nuptial agreement (also known as a premarital agreement) before you remarry or re-enter into a civil partnership.

Can I change our child's name after divorce?

England and Wales

A parent can change a child under 16's name with a 'Deed of change of name' (ie a deed poll). All those with parental responsibility must consent to the name change before you can change a child's name through a deed poll. If another parent with parental responsibility does not consent then you'll need to apply to the court to ask for permission through a 'Specific Issue Order'. The court will factor in how important a name change is in the child's best interests. As this is something taken very seriously by the courts, they will only grant an order if they deem a name change is absolutely in the best interests of the child.

Scotland

A parent can change a child under 16’s name provided they have parental responsibility for that child. If more than one person has parental responsibilities for the child, they must all agree to the change of name. A child’s name can be changed in one of the following ways:

  • Form 21 - an application for recording the change of first name(s) of  children under the age of 12 months

  • Form 23 - an application for recording the change of first name(s) of  children under the age of 16 years

  • Form PRF - this form is a questionnaire that must be filled out where the parents were not married at the time of the child’s birth and have not subsequently married

If you need help filling in these forms, Ask a lawyer