The family home is typically the most valuable asset owned by a couple, but how it is owned can cause a dispute. On divorce, it is important to ensure both parties have a home going forwards, but there can often be other issues that frustrate this. Also, with a recent slowdown in the housing market, selling up may not be an easy option.
There are a number of ways which a family home may be owned; by one party or jointly, be owned by a company, and/or held in a trust structure. It is also possible for a couple to be married and for the home to be owned in the name of one of them.
Typically, the courts will give little weight to individual ownership when it comes to dividing the assets on divorce. A non-owning spouse can register what is called a "matrimonial homes right notice" in order to protect his/her interest in the property pending an agreement being reached.
On divorce, the courts can make various orders in respect of the family home:-
• The transfer from one spouse to the other;
• The sale and for the proceeds to be divided between the spouses either in specified amounts or by percentages in order for them to rehouse themselves separately;
• The home be kept in joint names but that only one person remains living there. The property is then sold on a triggering event such as death, remarriage or the youngest child finishing education.
Within a divorce, the court will look at all the circumstances of the family, and the most important factor will be the needs of the parties and any dependent children. In many cases therefore the primary carer will retain the home while it is needed as a home for the children but it is by no means a certainty. If the house is too large for the parties needs, or the mortgage is too large and unsustainable, there may be little option but to sell. Every case is considered on its own merits.
Where couples have made an unequal contribution towards a property purchase, disputes are likely to arise. This is increasingly common thanks to the bank of Mum and Dad, who have been helping in more recent years with the increasingly high cost of getting onto the property ladder. It is absolutely vital for such contributions to be recorded in writing.
If there are no children in the marriage, the presumption is still that the property will be divided equally, regardless of where the money has come from, unless either person is able to show that this would be inappropriate. Exceptions can include if the person can show the assets exceed both parties' needs and/or the house was bought with assets built up by one person before the marriage. There is also a common misconception that a person who puts the majority of the funding into the matrimonial home will see their contribution automatically protected on a divorce.
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Julie Hobson. |
By contrast, the court's approach to resolving disputes between unmarried couples is very different and the legal/beneficial ownership will be very relevant. or those families unable to sell their home, and in situations where the couple are still on amicable terms, there is another option - "nesting", which began in the US and is relatively new here. The children remain permanent residents of the family home, whilst both parents take turns rotating in and out, living either in two new separate homes or in another shared property for the remainder of the time. Whilst this may provide a short term and less disruptive solution for the children, it is not advisable as a long-term measure.
Advice should be sought at the earliest opportunity with as much financial information as is available, a Solicitor can advise on all the options available for that particular family and circumstances.
Gullands Solicitors
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