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Family Law

What happens to the family home upon divorce?

Divorce and your home

What happens to?
The most commonly asked questions from couples separating or divorcing

Wednesday, October 27, 2021

There are various options you and your spouse can consider:

  • You may agree to sell your family home and divide the sale proceeds in whatever percentage you consider to be fair.
  • You may agree that one of you shall remain living in the family home and buy out the other’s share or that the other gets alternative assets of the same value
  • You may agree that one of you shall remain living the family home for now and there shall be a deferred the sale, for instance when your youngest child attains the age of 18. When your home is eventually sold you will both receive a share of the proceeds.

What happens if we cannot agree what happens to the family home ?

If you and your spouse cannot agree what happens to the family home, you should consider mediation. A trained mediator will work with you both to try to reach an agreement.

If you still cannot agree, then you can apply to the court to decide for you.

How will the court decide what happens to the family home ?

The Court will  look at the whole circumstances of the case.  The full financial position will be considered and every case turns on its own facts. If you have children, then their welfare will be the first priority. The court will try and ensure that your child’s life is disrupted as little as possible, which sometimes means staying in the family home.

Creating a trust of land can be used when a home needs to be provided for one of the parties if younger children are involved and need somewhere to live until they leave school. When creating a trust of land, there are two common arrangements;

  • Mesher Order, where the family home is sold and the equity is released when an event occurs, such as the youngest child leaving full time education.
  • Martin Order, where the property is sold upon the death of the party living there. Albeit, this option is uncommon.

In summary, selling the family home isn’t the only option available to the court.

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