The Former Matrimonial Home (FMH)

Matrimonial Home Rights

What is the FMH?

In the legal realm the former matrimonial home is referred to for the purposes of proceedings as the FMH. It is where parties to a Divorce lived together as husband and wife during the marriage, where they built a home together, and possibly where they raised children together. It is often the largest matrimonial asset the marriage has to offer and that the court must consider. The starting point for splitting net proceeds of the FMH is always a 50/50 split of the equity. If parties cannot make an agreement which will be incorporated into the Matrimonial Agreement, the Judge will rule what happens through Ancillary Relief Proceedings under what is called a Property Adjustment Order. There are a range of factors the court will consider when dividing the FMH if it cannot be reached by way of Matrimonial Agreement. Such factors include age of children, earning capacity, and contribution to the marriage and payments.

What if I do not own the FMH?

If you and your spouse lived together as husband and wife in council or housing association property, then there are different regulations that govern this area. As there is no ownership, there will be no property to sell. An Occupation Order may be the most appropriate option under the Family Homes & Domestic Violence Order. You should also take advice from your Solicitor in relation to a transfer order of the rented property.

I do own the FMH- What happens to the FMH?

During a Divorce, usually one of two things can happen to the FMH. The house is either sold with parties dividing the proceeds at an agreed split, or else one party continues to live in the FMH and ‘buys the other party out’ or buys their share of the FMH.  The ability of one party to retain a mortgage will be extremely relevant. Buying a spouse out would be possible if the party has sufficient earning and borrowing capacity to assume the existing mortgage together with raising a further lump sum to give to the other spouse. If this cannot be achieved, sale of the FMH is a more favourable outcome. If the party intending to stay in the FMH is not in a position to re-mortgage or not approved after taking advice from their financial advisor, then the FMH is sold.

Other Routes and Options- Mesher Order

Where selling the FMH is not an option, where there are young children involved the court will try and preserve the FMH for as long as possible at least until the children turn 18. Parties can agree between themselves in a Matrimonial Agreement to preserve the FMH until their children turn 18 without going through Ancillary Relief Proceedings in court. However when the court is involved the Judge has the authority to make an Order to retain the FMH in both names, but that one partner will remain in sole possession in the FMH with the children of the marriage.

Once the youngest child turns 18, the house can and will be sold and then the new proceeds will be divided between both parties. With a Mesher Order it will still need to be determined which party can pay the mortgage and if they can keep up with the payments. If the party cannot meet these requirements, a Mesher Order will not be applicable and the FMH will be sold.

I am thinking of a Divorce- what do I do next?

If you are in the middle of Divorce proceedings or thinking of commencing proceedings, seek advice straight away regarding matrimonial assets specifically the FMH. A valuation will need to be obtained of the FMH. The next steps will vary depending on if the parties will sort the FMH by way of Matrimonial Agreement or Ancillary Relief.

The Former Matrimonial Home (FMH) was last modified: March 27th, 2023 by Carla Fraser