Is buying a house after separation but before divorce advisable?

Buying a house after separation but before divorce can have significant legal and financial consequences. Even if a couple has separated, assets acquired before a financial settlement is finalised may still be taken into account during divorce proceedings. This article explains the risks of purchasing property before your divorce is concluded, how the courts may treat newly acquired assets, and the factors you should consider before committing to a purchase.

A key concern that many of our clients have is whether buying a house after separation but before divorce is a good idea.

A marital breakdown is never easy and means big changes for everyone involved, including children. You or your spouse would likely have moved out of the family home. You may be renting or staying with friends and family in the short term, but what if you want more stability and a new place of your own to start over? The decision to buy a house after separation but before the divorce is finalised is a complicated one. This article explores the legal distinctions between separation and divorce, the potential impact on divorce settlements, the pros and cons of purchasing a property during this transitional phase, and how a family law solicitor can help.

If your relationship has ended and you are considering making new financial commitments, make a fixed fee family law appointment for some initial advice.

Divorce vs. Separation

Understanding the distinction is crucial, especially when considering financial decisions like purchasing a house.

In the UK, the terms ‘separation’ and ‘divorce’ refer to different legal states. Separation occurs when a couple decides to live apart, whether formally or informally, without legally ending the marriage. This can be a trial separation, where both parties may still be open to reconciliation, or a more permanent arrangement. They may even draw up a separation agreement but this is a document to agree the terms of separation but this does not legally end a marriage.

Divorce, on the other hand, is the legal dissolution of a marriage. In the UK, the process starts with applying for a divorce and then allowing a period of time to pass before obtaining the final order, formally known as a ‘decree absolute’, which legally ends the marriage.

It typically takes several months to complete, depending on how responsive the other party is. Until the final order is made, however, and during the separation phase, anything owned by either party can be considered to be a marital asset. The issue of deciding who gets what when it comes to the division of marital assets is often where tensions run high.

Adding a new property to the mix can complicate matters further.

Impact of buying a house after separation but before the divorce is finalised

Buying a house after separation but before divorce can be risky when it comes to the divorce settlement. It depends on how the property is viewed by the court. If the court classifies your newly acquired property as a marital asset, this means that its value will be taken into account in the divorce settlement. At worst, this could mean your ex-partner is entitled to claim half your share in your new home.

If you purchased the property solely with your own funds after separation, or with a new partner, it is more likely to be considered as a separate non-marital asset. Unfortunately, it is not clear cut and often down to individual circumstances. The courts are interested in ensuring that the needs of both parties are covered. The reality is, that being in a position to afford a property may indicate financial stability. If your ex-partner was financially reliant on you, and cannot maintain a similar lifestyle post-separation, this could make any claims they have against your newly acquired property more compelling.

The bottom line is that buying a house after separation but before divorce is possible, but it is not without risks. That said, it might be the right decision for you, especially if your divorce is not hostile. It is a matter of weighing up the risks versus benefits in your particular situation.

With that in mind, let’s explore the pros and cons of buying a house after separation but before divorce.

Pros and cons of buying a house after separation but before divorce

Pros:

Gaining back some control: Marital breakdowns can be highly disruptive and unsettling. Purchasing a house can provide a sense of independence and accomplishment during these difficult times. Owning a home means you are not subjected to the restrictions of renting – you get to choose your new living environment, including any renovations or adaptations.

Stability for you and your children: Divorcing parents can be a very turbulent time for children. Buying a new long-term home could offer a secure environment for them to adjust to the changes.

Favourable market or unmissable buy: If the housing market is favourable, buying a property can be a good long-term investment. In some markets, the cost of renting far exceeds mortgage payments, so buying might be preferable if you have the means. It might also just be the case that something has become available in a highly sought-after location, e.g. in school catchment areas.

Cons:

Financial strain: Buying a house is a significant financial commitment, especially when you factor in the costs of a complicated or protracted divorce.

Added stress: Unless entirely amicable, going through a divorce can take its toll. Buying a house can also be very stressful in itself, especially if there are complications along the way.

Potential legal risks: As mentioned earlier, purchasing a property may impact the divorce settlement if the other spouse claims a right to the asset. The purchase might also compromise your position regarding any future spousal support, and child maintenance.

The role of a family solicitor and how we can help

Given the legal risks involved in buying a house after separation but before divorce, consulting a family solicitor is strongly recommended. We provide invaluable support and guidance during this transitional phase, including:

Tailored legal advice: Helping you understand the implications of purchasing a property during this transitional phase and how it may affect your divorce settlement given your unique personal circumstances.

Negotiation support: If disputes arise regarding the property or other financial matters, we can represent your interests and help negotiate a divorce financial settlement. This includes supporting you through any mediation.

Finding solutions: We can help safeguard your future assets and interests by securing legally binding agreements / e.g. a consent order with a “clean break” clause. This severs financial ties between parties and can give you peace of mind with any purchases going forward.

Summary

Buying a house after separation but before divorce is a significant decision that requires legal input. Whether a new house purchased after you split is excluded from the marital pot is often decided on a case-by-case basis, depending on your unique circumstances. Getting a financial order in place from the court is the main way to protect assets subsequently acquired from claims by your former spouse.

If your relationship has ended and you are considering making new financial commitments, talk to a specialist family law solicitor.

Our compassionate and skilled family team here at Tyrer Roxburgh Solicitors have a long-standing reputation in the community. We pride ourselves on achieving the best results for our clients, no matter how complex your situation.

Get in touch with us today on 0208 899 3319 or via one of the options below.

Frequently Asked Questions

Can I buy a house before my divorce is finalised?

Yes, you can buy a house before your divorce is finalised. However, the property may still be considered as part of the overall financial settlement, depending on the circumstances. It is important to obtain legal advice before proceeding, as a new property purchase could affect negotiations and the eventual division of assets.

Is a house bought after separation included in a divorce settlement?

Potentially, yes. Assets acquired after separation can still be taken into account by the court if the financial claims between spouses have not yet been resolved. The court will consider all relevant circumstances, including when the property was purchased and how it was funded.

Can my ex-spouse claim part of a house I buy after separation?

In some cases, an ex-spouse may be able to make a claim against a property purchased after separation if financial claims remain open. Whether a claim succeeds will depend on the specific facts of the case. Obtaining a financial order that dismisses future claims is often the best way to achieve certainty.

Should I wait until after my divorce to buy a house?

Many people choose to wait until a financial settlement has been reached before buying a property, as this can reduce uncertainty and potential disputes. Whether waiting is advisable will depend on your financial circumstances, housing needs and the stage your divorce has reached.

Can I get a mortgage while going through a divorce?

Yes, it is usually possible to obtain a mortgage while divorce proceedings are ongoing. Mortgage lenders will assess your income, financial commitments and ability to meet repayments in the usual way. Some lenders may also take account of any ongoing financial obligations arising from the divorce process.

What is the risk of buying a house before a financial settlement?

The main risk is that the property could become part of the assets considered during financial remedy proceedings. This may affect how other assets are divided or the overall outcome of the settlement. Seeking legal advice before purchasing a property can help you understand and manage these risks.