Property & Divorce

One of the most pressing concerns for our clients when their relationship has broken down is what will happen to their home and property during the divorce process?

The Family Home

The home is at the heart of the family and is normally the biggest asset to divide during the divorce proceedings, so it is fair to say it can prove to be the most contentious issue in a divorce or separation. The family home, and in particular who stays living in it, can be a stumbling block to parties settling amicably or the matter going to court.

Whether the home is owned or rented, you should continue to pay the mortgage or rent, as well as any insurance policies on the property.

We understand that meeting such obligations can be difficult when a household goes from joint incomes to two separate accounts. If you are unable to cover these payments due to your change in circumstances please engage with your mortgage provider or landlord.

From the offset we should note that people tend to have a lot of preconceived ideas about who gets to stay in the family home. The courts will decide each matter on the facts of the case.

In order to properly advise you on your prospects of remaining in the family home, we will go through your finances with you. We will also request full financial disclosure from your former spouse. If we have any queries in relation to their disclosure, we can request further information by way of discovery and/or engage the services of a forensic accountant on your behalf.

Full disclosure by both parties is imperative so that settlement negotiations can be undertaken with the financial resources of each party known.

As noted above, the Court looks at each case individually and seeks to ensure that proper provision is made for both parties. It can make a number of different Orders, including:

  • The sale of the home and apportion the proceeds between the parties in whatever way it deems fit;
  • Could split the ownership so one party retains ownership until a later date (e,g,. party A stays in the property until there are no longer any dependents upon which time the house is sold and the proceeds are distributed between party A and party B);
  • It could order a lump sum to be paid by one party to the other where the Court is of the opinion that they have the financial means to do so;
  • The house could be granted to one party and pension pots granted to the other.

It is clear that the Court has wide discretion as to what Orders it will make so please speak to us today for an assessment of your situation and what possible Orders could be made in your case.

Who gets the family home is clearly a significant decision for the judge to make so they will take several factors into account. These include:

  • The welfare of the child/children that ordinarily stay in the home;
  • The income, earning capacity (present and future) of each spouse;
  • The financial needs and obligations of each spouse;
  • The contribution of each spouse to the home – the Court does value the duties of a homemaker in raising children and maintaining the home;
  • The standard of living enjoyed by the family before the breakdown of the relationship;
  • The age and years until likely retirement;

There should be no doubt that when a relationship fails there is a correlating shift downwards in the finances of each party and the Court therefore tries to weigh the positions of each party equally.

If there are children of the marriage, the Court’s primary concern will be that a home will be provided for the children. The Court could order that the family home be sold so that two smaller properties can be purchased but this is not possible in a lot of cases.

If there are two properties, for example the family home and an investment property, the Court will try to provide a suitable home for the parent that will have primary custody of the child(ren) while the other spouse has a home that can cater for visits from the child(ren).

A dependent child is a child under the age of 18 or a child that remains in full-time education up until the age of 23. The Court could rule that the primary caregiver can remain in the property until the child or children are no longer dependent and then the house is to be sold and any proceeds are divided as it deems fit. Children with special needs or disabilities of whatever age will also be taken into account.

If there are no children of the marriage, and the financial resources of the parties are fairly equal, then the Court would most likely order the house to be sold and the proceeds (if any) to be split between the parties.

As you can see from the above, there are many different potential outcomes so you should seek specialist advice which will help you to know what orders might be made in your case.

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