Partition of property – How is property divided in a divorce?

When two spouses decide to end their marriage, they have to partition their property. This involves making an inventory of the matrimonial property and dividing it in half between the spouses. If the spouses have a prenuptial agreement concerning their entire property, the assets will be separated instead of partitioned and both spouses will keep the assets held in their name. 

Sometimes, instead of all assets, only a part of the assets the spouses have can be excluded from matrimonial property. The spouses may also possess property, such as an inheritance or gift, that the other spouse has no marital right to. This property is excluded from the partition calculation.

The partition may also lead to arbitration if the partition is not otherwise fair and equitable. In such cases, as an exception to the general rule, the assets are distributed in a way that does not result in unreasonable harm or benefit for either spouse. The grounds for conciliation are determined separately in each case, with factors such as the duration of the marriage influencing the decision to conciliate the partition or not. 

When matrimonial property is divided by partition, the spouse who owns more assets subject to the marital right makes an adjusting payment to the spouse who owns less. The adjusting payment can be made in cash or by transferring other assets to the spouse. The form of payment is decided by the person making the adjusting payment.  

It may be wise to consult with a lawyer who specialises in divorce cases when settling the partition, especially if the matrimonial property has a large value or if the division of the property is confusing or contentious or it results in a dispute.

How is property divided in a divorce?

The partition of property can be started as soon as the divorce petition has been filed with the district court. The district court’s decision on the beginning of the reconsideration period is needed for the partition of property. Preparing the partition calculation, which is part of the partition process, can be an arduous task, as you must find out about all your assets and debts. Therefore it is recommended that you start it immediately. 

Both spouses must obtain the necessary documents for all their assets and debts, both those subject to the marital right and those excluded from it. Necessary documents include statements on bank deposits and debts and appraisal documents for apartments and real estate.

Deed of distribution of matrimonial assets

The partition of property can also be handled through an agreement. In this case, the spouses draw up a deed of distribution of matrimonial assets. In this deed, the spouses can divide their property in the manner they prefer. An exception to this are debts, the division of which must always be agreed on with the creditor. In addition, it should be noted that the partition of property may have tax consequences. The deed must be signed by the spouses, as well as two competent witnesses.  

Alternatively, one or both spouses can apply to the district court for the appointment of an executor for partitioning the property. However, you should remember that an executor will charge a fee for their work.

What happens to the family home?

The partition of property will also determine what will be done with the family home. If one of the spouses will continue to live in the family home, they must first find out if they, on their own, are able to service the home loan originally taken out by two people. A divorce usually results in big changes to the spouses’ finances. Typically, invoices which were shared will have to be paid by one person alone. In most cases where this is not possible, the home must be sold.

Selling your home after a divorce 

If neither of the spouses is willing or able to buy out the other spouse from the family home, the home must be sold. This is usually done by a real estate agent. The price obtained from the sale of the home is used to repay the remaining home loan, and the cash left over is divided in the partition of property. 

We will help you arrange your finances after a divorce

Don’t hesitate to contact us if you need help in arranging your home loan, for example, after a divorce.