The Family Home

The Family Home

The family home is often the most substantial asset of the marriage, and it is therefore usually the main focus of financial disputes.

The first concern of the court is the housing needs of the children who need to be housed in suitable accommodation. This does not always mean that they have to remain in the family home. For example, if the property is too large for their needs or the financial outgoings, including the mortgage, are unsustainable by the parties, the court can order that the property is sold.

Types of orders that the court can make regarding the family home

Transferring the property into the name of one of the parties

It is often the case that one party wishes to retain the family home and to purchase their spouse's interest. This will depend upon whether or not the spouse in occupation has sufficient borrowing capacity to take on the mortgage or to obtain a new mortgage.

If one party has a substantial pension then the other spouse can offset their claim to a share of that pension by receiving a larger share of the capital assets which frequently involves the family home.

Delaying the sale of the family home

In certain circumstances whether or not there are children living in the family home the court can delay the sale of the property, or the payment of a lump sum, until certain specified events occur at which time the non resident spouse will receive their entitlement. These types of orders are rare, especially when there are no children involved. The courts in most cases favour a clean break settlement between divorcing spouse.

Selling the family home

When there is sufficient equity in the family home to enable both parties to buy adequate accommodation for their needs the court can order sale. This does not mean that the net equity will necessarily be divided equally. The court will take into account many factors in deciding how to divide the family assets.

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