18th June 2019
Divorce and the family home
Divorce and the family home
When marriages break down and the divorce process is finished, there’s one big question on everyone’s mind: who gets the house? This is particularly complicated for families with children, who are often faced with so many options they don’t know what to do.
We at Sweeney Miller understand that it’s important to face the facts in this situation in order to move forward. In this article we cover the general points that tend to emerge when a solicitor is tasked with negotiating the fate of the family home.
Children are the priority
The welfare of any children caught up in a separation or divorce is paramount. Where possible, the Court will want to achieve stability for the children and it is preferable for the children to live in an owned home. However, this may not always be affordable.
In a divorce, provisions may still need to be made for children aged eighteen and over who are still living at home whilst they are still dependant on their parents. Financial support for a child may now extend until they finish full-time education. Depending on individual circumstances, parents may need to provide occupancy for the child up until they finish their first degree, however this is rare and the trigger point for the sale of a family home usually occurs when the youngest child leaves secondary education.
How the court decide what happens to the family home.
There are a range of Orders which the Court can make in relation to the family home, including the following:
- Selling the property and dividing the proceeds;
- Transferring the legal and beneficial ownership from one party to another;
- Postponing the sale of the home to a specified date, e.g. when your youngest child reaches 18, at which point the proceeds of sale will be divided.
In addition to the welfare of the children, the Court will the Factors detailed in Section 25 of the Matrimonial Causes Act 1973 which include:
- The party’s current income and future earning capacity;
- The party’s current and future financial needs, obligations and responsibilities;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage
- The duration of the marriage;
- Any physical or mental disability of either of either party;
- The contributions each party has made to the welfare of the family, including looking after the home or caring for the family;
If there is money tied up in the property, the best course of action may be to sell it in order to best provide for the children. However, sometimes, it may be agreed that the family home should be retained for several years to provide stability for both the children and financial continuity for the parents, however, this is dependent on the individual circumstances of the case.
There is no ‘one size fits all’ approach to how the family home will be treated on divorce which is why it is important to take legal advice on your individual circumstances as soon as possible.
What about the future?
In some cases, when children are particularly young and circumstances allow, it is possible for legally binding agreements to be made by the court so that the property will be sold when the youngest child turns 18.
It’s possible to agree to the particulars of a future sale many years before it occurs, as long as relevant evidence is presented. You may need to establish mortgage capacity (or lack thereof) and agree how the proceeds of the sale will be divided when the house is sold.
Conflict can arise when trying to agree the terms of an agreement for the current or future sale of the property and how the equity will be divided.
The starting point of the division of the matrimonial assets is a 50/50 split but applying the Section 25 criteria above may mean that the assets need to be split unequally to achieve a fair outcome. For example, one party may argue that they should get a larger share because they earn less, while another may push for an increase in their share to account for the fact that they’ve had to wait so long to receive anything.
It’s then up to the solicitor instructed to negotiate and try to strike a balance between the two conflicting positions. They may do this by factoring in other financial claims such as offsetting other assets like pension sharing.
Sweeney Miller are experts in Property and Family Law
With the divorce and separation process being such a complex and emotional time for all involved, it’s important to pick the right solicitor to oversee proceedings.
Sweeney Miller employs dedicated Property and Family Law specialists, with teams dedicated to ensuring you receive the best level of care and professional advice.
Looking for a solicitor to oversee the sale of your family home following a divorce or separation? Get in touch with a member of our team today.