What might happen to the family home in a divorce?
Matters pertaining to the family home are one of the most emotive aspects of any divorce proceedings. The family home was often the biggest purchase in a relationship, and represents the place where a relationship grew and children were cared for. As such, deciding what happens to the family home can be a highly contentious process.
In divorce cases, the matters relating to the division of financial aspects are dealt with separate to the divorce petition, as part of an application for ancillary relief. Similarly, matters relating to the ongoing care of children are handled separately in a Statement of Arrangements for Children. All of these processes are best handled by an experienced family law solicitor who can offer legal advice in the first instance to ensure that you approach your divorce in the right way to achieve the best possible outcome.
Agreeing on divorce outcomes
In all situations, the court prefers not to make judgements on the division of financial assets or the care of children. The main purpose of the court is to ensure that the legal process is followed appropriately, and that any agreements reached are fair. In the main then, your family solicitor will advise you to seek all possible means by which to achieve a mutually agreeable outcome in relation to the family home.
This might best be achieved through independent mediation, which allows both parties to the divorce to meet a mediator who can weigh up the competing interests and concerns of both sides before suggesting a suitable outcome. This is the preferred route recommended by many experienced family law solicitors.
In the event that agreement is not possible, then the courts will make decisions on the division of financial assets including what happens to the family home. In reality, any decision like this will be affected by the best interests of any children to the relationship and the arrangements for their care. Crucially though, it will hinge on whether both parties can realistically be maintained and afforded a reasonable standard of living giving their respective incomes, earning potentials and other financial commitments.
In divorce, matters relating to the division of financial assets are considered as part of an application for ancillary relief which is made alongside any divorce petition. In all circumstances, a court will prefer parties to a divorce to present an application which has been agreed in advance. In theory, agreeing what is fair is probably best achieved by the parties to the relationship, who understand their situations better than any outsider ever will. In practice however, emotions will be running high, and reaching even the simplest agreements in a divorce can be difficult and emotionally draining.
The home as a financial asset
In all cases the family home is considered as an asset, but in divorces with children their ongoing care and best interests will trump any hard-nosed financial split. In most circumstances, the party who is awarded long term care responsibilities will keep the family home, unless it is unfair on the other party for them to do so. If the other party cannot sustain themselves financially then the court may order for the home to be sold to allow both parties to purchase smaller accommodation.
In all cases the court must consider the welfare of the children first and foremost. They will also consider the income, earning potential and financial resources of both parties and their respective needs. Other considerations include the standard of living enjoyed by the family prior to the breakdown of the relationship, the contributions made by both parties with the welfare of the family, and in exceptional cases the conduct of both parties.
Submissions for ancillary relief
Your divorce law solicitor can help you submit the application for ancillary relief. The submission can cost between £200 and £300 in court fees alone, and will take between three and four months. In the interim you will be asked to submit details of your family affairs prior to an appointment with a judge. At the appointment, the judge will present a plan of action which both parties must agree to. If they cannot agree, the judge may order a second hearing, or may order a financial dispute resolution hearing, or mediation.
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- Last Updated on 15/02/2012