Most cases settle outside of Court, the parties to a case often reach their own agreement as to what is to happen the family home and the Judge simply approves this agreement once they are satisfied that proper provision has been made for both parties and any dependent children. If an agreement cannot be reached, the Judge has a variety of options in terms of dealing with the family home and below is a list of some of the possible ways the Judge may decide to deal with the home:
1. The Judge can make an Order transferring the family home into the sole name of one person. This often, but not always, involves the payment of a lump sum by the party retaining ownership of the family home, to the party who is losing their interest in the property. It will be necessary to obtain a valuation of the family home as part of the Divorce Proceedings together with details from your mortgage provider as to the amount outstanding on your mortgage. This allows the Judge to understand how much equity or value is in the family home and decide upon what lump sum, if any, is to be paid by one spouse to the other if the property is to be transferred. Unfortunately, in some cases it may be that the property is in negative equity i.e. when the outstanding mortgage exceeds the value of the property. If that is the case, it is wise for the parties to engage with a Personal Insolvency Practitioner (“PIP”) and see what can be done in terms of negotiating with the mortgage provider.
2. The Judge can direct the sale of the property and for the net proceeds of sale to be split between both parties. The percentage split will be determined on a case-by-case basis.
3. In cases where young children are involved, the Judge can make an Order that the house be sold but not until such time as the youngest child reaches the age of eighteen or ceases full time education (up until usually the age of 23 which is when legal dependency ends). Thereafter, the net proceeds of sale to be divided between the parties. The percentage of the net proceeds of sale to be received by each party would be determined by the Court at the time of granting the Decree of Divorce.
When making proper provision, judges must take into account the accommodation needs of both people as well as any dependent children. If a child or children have additional needs, this must also be taken into account. Further, property acquired before a marriage is not automatically owned solely by that person, proper provision requires a broad view of each person’s individual needs as well as the assets available to them jointly or individually.
If you would like more information and advice on your specific situation, please contact us on (061) 467 392 to arrange a consultation with one of our solicitors via our website.