There are lots of decisions to make when getting a divorce, particularly when it comes to the division of assets and ancillary relief. Usually one of the biggest assets a couple will own is the family home and choosing who gets to remain in the property can be one of the hardest problems to tackle during a divorce. This is often one of the first questions our clients have when they are in facing divorce and the breakdown of their relationship. It becomes increasingly important when there are children to the marriage living in the matrimonial home.
Will I have to sell the family home? The simple answer to this is: it very much depends on the circumstances. Every set of circumstances is different. There are rules which the courts will follow in relation to the division of property and assets post break up. The courts consider the divorce as of primary importance as this concerns the arrangements for any children. Ancillary to this are the financial matters and matrimonial assets. This is ancillary relief. Throughout the legal procedure to settle ancillary relief from first review through to, financial dispute resolution (FDR) appointment and final hearing the judge will work with the parties to achieve an outcome where there is mutual agreement. Only as a last resort where agreement cannot be reached will the court use its power and impose a judgment.
We fully understand how worrying this time can be. The reality is that there is always a possibility the home may need to sold. You will be anxious to know what might happen in terms of your living arrangements. This is especially true if you have children. Critical points in their education such as GCSEs or A Levels and therefore moving house would be a very unsettling event for them. There may also be family links to a particular property which makes moving very stressful.
The legal system
The courts and your legal team will examine carefully all the circumstances of your case. The financial history of both parties and what assets you hold jointly and separately are considered. The finances of the marriage are disclosed by both parties. This will include a valuation of any property, the most recent mortgage redemption statement, bank statements for the last 12 months for every account listed, surrender value of any life policies owed, proof of earnings, CETV of any pensions and all other information which might be relevant. From then we can advise you on how you might retain your property and if that is indeed in your best interests.
What will happen to my home?
There are a number of solutions that we can argue for on your behalf to deal with the matrimonial home. The first option is to sell the property and split the proceeds according to the agreed share. This may be a 50/50 split or a different percentage share. This split is agreed dependant on the length of the marriage and contributions made throughout the marriage.
Alternatively, one party retains the matrimonial home and raises enough finance to buy out the other party’s share of the property. This will involve paying an agreed lump sum and then the property will be legally transferred into your sole name. It is important that party who retains the matrimonial home confirms with the mortgage company that they can manage the mortgage repayments on their own or that they are capable of re-mortgaging in their own right. This means that children living with you can continue living in their familiar environment without the need to relocate.
Another option is that one party takes a charge over the property and the house is not sold until one of the following circumstances comes into play.
This can be:
- the death of either party,
- the youngest child reaching the age of 17,
- or finishing full time education,
- or the person remaining in the property remarries.
Children living in the home are offered continued stability with this option.
What will happen to my home?
In making any decision about the matrimonial home the court will look at a variety of factors, including your income, your earning capacity, any other property and financial resources which either you or your spouse own or are likely to have in the foreseeable future, as well as any future financial needs and responsibilities.
The court looks at the standard of living enjoyed by the family before the breakdown of the marriage. It will also consider any physical or mental disability of either of you, or your children. It will also note any contributions which you have both made to the marriage, both in financial terms and also in looking after the home and caring for the family.
If it would be unfair to ignore the behaviour of one party. The judge will bear this behaviour in mind concerning any decision the court needs to make.
A just resolution
Pre Action Protocol as dictated by the High Court in Northern Ireland. In respect of ancillary relief states that all parties must bear in mind the overriding objective of justice and ensure that all claims are resolved. It also ensures a just resolution achieved as speedily as possible without costs being incurred unreasonably. We will ensure that costs are reasonable and the needs of any children are addressed and safeguarded throughout the process.
PA Duffy and Company’s expert family solicitors advise on the most appropriate approach to take if faced with the uncertainty of divorce.