When you marry someone, the financial rules between you change. There is a set of laws, put into place by parliament, which set out what should happen to your assets if your marriage ends. It is not the case that you can take back what you put in. These laws set out that a court has the power to transfer property from one spouse to another, order the sale of a property, transfer a pension from one spouse to another, or order one spouse to pay the other a monthly sum, which is referred to as maintenance or periodical payments.
The court looks at all the circumstances in the case when deciding how to share out the assets. These circumstances are set out in section 25 of the Matrimonial Causes Act. The court will consider the fact that you paid the deposit but the judge may decide that it is not at all relevant in their decision as to how the assets should be divided.
The fact that you paid the deposit will be irrelevant if that money is needed to meet housing needs. In a divorce involving a family home and modest savings and pensions, the case is usually a “needs case” which means that all the money will be used to meet needs, and there is no surplus to consider. There is a different approach if the case involves more money than is required to meet financial needs.
The goal of the court in a needs case is to work out how to buy a home for each party using a deposit and a mortgage. If one party has a higher mortgage capacity, they will require less deposit. If one party has a lower mortgage capacity as they earn less or have health considerations, caring responsibilities or are older, they will require more deposit from the sale proceeds of the family home. The question of who put the money into the family home to begin with will only come into consideration if your situation falls outside of the “needs” bracket.
The answer is summarised in this quotation from a case called White v White [2001] 1 AC 596,
‘Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. The judge should take it into account. He should decide how important it is in the particular case. The nature and value of the property, and the time when and circumstances in which the property was acquired, are among the relevant matters to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant’s financial needs cannot be met without recourse to this property
Milton Keynes milestone by Sarah Joy
