The family home is usually the biggest asset in any separation. What happens to it depends on several factors — children, finances, who contributed what, and future needs. It is rarely as simple as selling and splitting 50/50, and it is rarely as simple as one person keeping it. Here is how the courts approach it.
The Family Home Protection Act 1976 gives significant protection to the family home. Neither spouse can sell, mortgage, lease, or otherwise dispose of the family home without the written consent of the other spouse — regardless of whose name the property is in. This protection applies from the moment of marriage and continues until the marriage is legally dissolved.
On separation or divorce, the court can make a property adjustment order — transferring the home to one spouse, ordering its sale, granting a right of residence, or postponing sale until children finish school. The paramount consideration is always the welfare of dependent children.
Factors the court weighs include: the financial circumstances of each spouse, the contributions made to the family — including non-financial contributions such as childcare — the reasonable needs of each party, and the welfare of any children.
Many people going through separation agree to financial terms — including the family home — under pressure, in distress, or simply to get the situation over with. Agreements made without independent legal advice can be set aside, but it is far better to get advice before agreeing than to try to undo an agreement afterwards.
Niamh had been out of the workforce for nine years, raising three children. The family home was in joint names. When her husband said he wanted to sell and split the proceeds, her first instinct was that she would have to agree — she had no income and could not afford to buy him out.
Her solicitor explained that the court's first consideration was the welfare of the dependent children. A forced sale that required three children to move schools and leave their community during an already difficult family transition was not something a court would lightly order.
An application was made for a property adjustment order transferring the family home to Niamh, offset against her husband receiving a greater share of the pension accumulated during the marriage. Her husband's higher earning capacity meant he was better placed to rebuild financially.
The court agreed. Niamh kept the house. Her husband received a larger pension share. The children's lives were not disrupted.
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