Caroline Bilous – senior solicitor – in our Family Law Team asks: Should I stay or should I go?

One of the many decisions that couples face is what will happen to the family home when they go their separate ways: Will it be sold or will it be retained by one spouse or another to provide a home for them and often also for the children of the family?

An important first step when deciding whether you want to stay or go is to get the full picture of the assets available and take advice as to how much you are able to borrow on a mortgage in your own name.

Once you have an idea of your own borrowing capacity you will have a preliminary view as to whether staying in the family home is feasible for you.

It is – however – also important to consider the following:-

1)     If you remain in the family home can you meet the outgoings associated with the upkeep of the house?

2)     Are you maximising your income in order to relieve the burden and stress of meeting the outgoings?  Examples of additional income include child maintenance, spousal maintenance and state benefits.

3)     Are you able to obtain a new mortgage in your own name?  This may include not only taking over the existing mortgage, or securing a mortgage for the same amount as is outstanding, but also raising an additional lump sum to “buy out” your spouse’s interest.

Inevitably when spouses separate there can be a fundamental dispute as to whether one person will stay in the family home or whether it should be sold.  In the event of a dispute, the court can intervene and make an order upon application by either spouse. Orders that can be made include:

  • An immediate sale of the home with a division of the proceeds;
  • An outright transfer of one spouse’s interest to the other with or without payment of a lump sum to the other spouse;
  • A postponed sale of the house, with one spouse remaining in occupation, usually until the children complete their education or until you remarry. When the ‘trigger event occurs’ the house is than sold and proceeds divided in specified proportions.

Remaining in the family home has its advantages although some will argue that an immediate sale will bring about closure and a fresh start.

For more information about Caroline and her work, please click HERE.

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