By Conal McGarrity
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High Court Judgment Reinforces Importance of Best Interests of Children in Divorce Proceedings

A recent Judgment in the High Court in Northern Ireland has reinforced the notion that the best interests of the child should be at the centre of Ancillary Relief proceedings. Disputes surrounding who gets to retain the former matrimonial home commonly arise in divorce proceedings and can often cause a lot of turbulence, particularly when children are involved.

The recent Judgment in L v L [2018] has gone a long way in clarifying this area, although Master Sweeney did stress that ‘every single case is fact specific’ and therefore different outcomes are always possible in cases of this nature. Both parties in this case wished to retain the former matrimonial home. They had lived together and raised 3 children in the home prior to the breakdown of their marriage. The respondent (the children’s father) owned the home in his sole name and was gifted the property by his parents, who own and live on the neighbouring land.

The respondent’s claim to the former matrimonial home was based on the above facts as well as the fact that his business was based on the property and the fact that he was able to raise a lump sum to the same value of the home which would allow the petitioner (the children’s mother) to buy another house. Master Sweeney considered these factors but ultimately ruled that the property would be transferred into the name of the petitioner (mother) on the basis that the impact of the children having to leave the family home would be too detrimental to them, particularly as one of their children has autism and is highly dependent on their mother. The fact that none of the children wanted to leave the family home also informed this decision.

Master Sweeney concluded that; “the respondent did not fully appreciate that while he may have worked hard, financed and built the former matrimonial home…the petitioner also made a valuable contribution to their household in managing their home and devoting herself to the care of their children.” Some would argue that this decision is unfair toward the father of the children, particularly as he was able to raise a lump sum which would allow the petitioner to buy a house in the vicinity to accommodate herself and the children. However, as outlined above financial contribution is not the only decisive factor in establishing equity in a property and indeed the petitioner was able to accrue a greater interest in the former matrimonial home as a result of years of care for the children and overall contribution to the family home. The Judge did include in his Judgment the condition that if the property is to be sold the respondent (father) will have the first option to buy. The best interests of the child should trump all other considerations and the need to mitigate any harm or disturbance caused to young children is paramount. At PA Duffy and Company our experienced family law solicitors can provide expert advice and representation in divorce and ancillary relief proceedings. Our solicitors will help you to protect your interests and, importantly, the best interests of your children.

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