The Family Home is generally the highest value asset that a couple owns during their married life. What happens is that this asset is therefore one of the main battlegrounds of any Divorce. There is, however, no set criteria to say which spouse will definitely get the house in Court. Each case depends on its own facts but there are certain matters that a court will definitely look at.
Are there dependent children residing in the Family Home? Dependent children are defined as either children under 18 or children under the age of 23 in full-time education. Realistically, if these children exist, there is a preference by the courts that the Family Home not be sold until these children cease to be dependent. The Court can achieve this through different methods but the most common being that the Wife (normally) gets a right of residence in the family home until the children reach the requisite age and the house is sold at this stage. If the children are relatively young, this can leave the partner that is not in the family home in a tough situation as it may hinder his/her ability to raise a mortgage on another house.
The other option may be that the Wife takes over the mortgage and waives rights to other marital assets such as cash/pension. This depends on many other factors such as earning capacity of Partners/Amount remaining on mortgage/Value of Property. The most important factor is whether a financial institution will agree to this arrangement as a court order is worthless without this approval.
If no children exist, the house is just one asset in the pool of family assets that needs to be divided fairly based on the needs of the respective parties. Each case is different but some of the factors to take into account are:
The Court can make different orders in respect of the home namely
The question of ‘Who gets what in a divorce?’ is often the first thing people ask and we will attempt to give a breakdown of this with regard to the family home below.
Both Parties have an equal right to stay in the home until the court orders otherwise in the Family Law Proceedings. The Marital Home is part of the marital assets of the married couple. These assets would be the subject matter of the divorce proceedings. If one party requests the other to leave, then careful consideration should be given before leaving. This can include getting legal advice before taking any such action. If the Property is in joint names then it is quite obvious that both parties have equal rights to stay in the property. If it is in one spouse’s name then the reality is that the refusal by the non- “owning” spouse to leave would force the “owning” spouse to apply to the court to eject the other spouse during the currency of court proceedings. This would not be a successful or wise application to take.
The house will form part of the marital pool of assets which will be part of the pot to be divided by the court when ordering the division of assets in the divorce. It is quite common that the Family Home can be in one spouse’s name but because of the Family Home Protection Act, the owning spouse cannot sell/dispose of/refinance the property without the consent of the owner’s spouse. While it can be taken into account, for instance, that one spouse owned the property for a considerable period prior to the marriage, the golden rule would be that once a family home always a family home. In general, if Divorce proceedings are in, being it is safe to act as if all marital assets are joint assets, and that one spouse has equal rights as the other spouse. The rights of the non-owning spouse when the Judge makes his/her decision will be the same as when considering all the other assets in the marriage and the criteria considered here (see previous).
In general, the Courts dislike selling the Family Home when there are children in the marriage. Preference is given to the children remaining in the home and retaining a sense of stability despite the many other changes going on as a result of their parents separating. So despite the fact that most of the marital finances may be locked into the House, the courts will still prefer to keep the status quo. This may take the form of one partner getting a right of residence until the children cease to be dependent. This can sometimes seem unfair on the spouse who is required to leave the family home and perhaps live in lower standard accommodation while also paying maintenance for the children. This however can be the unfortunate reality of divorce in Ireland
The stock answer is that no―just because you move out, it should have no consequence on who will get the house when the case ultimately comes to court. The argument would be that it is just one asset in the Marital Money Pot and that the court when arriving at their ultimate decision, will have to consider all factors before making their mind up. The fact of one person not living in the home should be a minor consideration among many factors to consider. However in practical terms, like a lot of things in Family Law, there seems to be an inherent bias to keeping the status quo. Similar to maintenance, if I pay 1200 a month, without difficulty as monthly maintenance for my two children while renting a separate residence, then the court will most likely not reduce this maintenance. After all, the person has clearly been able to do it for a certain period of time. Equally, the person who leaves the family home and rents or moves in with their parents is proving to the court that they can survive outside the family home. The other party can plead that this option would not be possible for them and it makes the argument in favour of moving back into the home that much harder. Of course, this is difficult advice to receive when clients will say that it is a toxic environment and unbearable to live in these conditions and that they cannot put their children through this torment. Ultimately it is each person’s decision to make.
Legally speaking, the person on the mortgage deed is the person who will be liable if the mortgage payments are not made. So if both parties are on the mortgage this is quite simple. If only one party is on the Deed then legally that person is responsible but if divorce proceedings are in being then the prudent course would be that the status quo should remain ie if both parties previously contributed equally to the mortgage then that position should continue. There are other considerations obviously if one party leaves and has to spend a lot of money to rent separate accommodation. The key thing to remember in deciding what to do in these situations is “Will my actions now reflect well on me in 2 years’ time if I am cross-examined by my partner’s solicitor? Will you look good in the eyes of the court if you arbitrarily decide to not pay the mortgage after you move out and move in with your parents rent-free?” Consider this and think about getting legal advice before making any decisions.
Yes. You can also steer a car with your feet. It’s not a very wise or clever thing to do but you can certainly do it. Above and beyond the fact that you will be required to have documentation signed by your soon-to-be-ex-wife, it is not wise to enter any long-term transaction while getting divorced as all your property is marital property and “up for grabs” when the court hears the case. If you have cash or raise finance to buy this property, the division of the marital property suddenly became far more messy and difficult. This is in addition to the likely bigger expense of potentially having to sell the property immediately and the added time and expense it will add to your divorce.
Technically you can sell the house if your partner consents and signs all the required documentation. He/She would have to be independently legally advised. I cannot think of the circumstances where this would occur and why this would be necessary. The House is a substantial part of the marital Financial pot which the court will divide. The Court can order that one partner have a right of residence for a period of time or an order to sell the house and divide the proceeds in certain percentages. If one party wanted to force a sale before the conclusion of the proceedings they would have to make an application to the court. This application would most likely not succeed.
There is no hard and fast rule of being entitled to half the house. In California, each spouse or partner owns one-half of the marital property. It seems a very simple system and when spouses divorce each receives half of the property. We do not have such a simple system. So in certain circumstances, you may be entitled to half the property but other times not. It depends if there is one house or more than one house, did one spouse own the property before the couple married? what financial contributions were made by each spouse? how long was the marriage? are their other finances i.e. cash/pensions, etc? The court evaluates the marital assets of the union and then attempts to divide the assets fairly reflecting the fact that both parties’ standard of living may be reduced as one home necessarily must now become two.
The fact that your husband bought the house before you were married is certainly something the court would look at if deciding to give you the benefit of the house. If children are involved, see here, but if not, a lot may depend on the length of the marriage. If for instance the marriage only lasted a year and one spouse had paid a mortgage for twenty years then no, you would most certainly not be entitled to half. However, if one spouse had bought the home one year before being married and the marriage lasted 40 years then the fact of one spouse buying before marriage would be a very minor consideration. If you want to find out further as to what considerations the court thinks about when deciding on the house in a divorce click here.
Unfortunately, the answer may well be yes in certain circumstances. I have discussed elsewhere what will happen if there are children involved click here and the factors the court thinks about when considering what to do with the family home in a divorce see here. So if you consider these factors you can easily see a situation where the court has no other real choice but to order the sale of the house in order to achieve fairness between the parties. As an example, if a more mature couple divorces and the children are all grown up and the substantial asset is the 5 bedroom house worth 1 million euros and one partner now resides there alone. The only option is that the resident spouse buys the other spouse out of their interest but this option would be remote, as a mortgage would not be possible. The question is whether it is fair for this person to live forever in this home while the other spouse rents in lesser accommodation. The answer would be that the court may have no choice but to order the sale to allow both parties to have adequate accommodation.
The Family Practice was set up with a simple mission. To help people through Divorces where assets are involved. Established by experts in the field, we understand how overwhelming divorce cases can be, so our aim is act as your sword and shield, guiding you through the whole process, while also keeping costs down. But first it’s important to know why you need a solicitor when there are assets in the first place.
If you have a property, a pension or other assets and are divorcing, you need a solicitor. The reason is simple. People think that divorces are all about the family home, but in fact other assets, for example a pension, can be even more valuable. The courts know this and want to ensure equity, so any agreement must be court approved. We are experts in this process. Securing the best future for you is our priority.
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