Divorce: What happens to the family home?

When love leaves the building, what happens to the home? For most, the family home is a safe haven. But if you’ve emotionally checked out of an intimate relationship, with feelings fraught and finances in play, can you stop it becoming a battle zone?

"In general, it's a 50/50 split," says specialist family law solicitor Deirdre Burke. "Regardless of who is registered as the owner, if a couple is married, that's the starting point."

The first option is for one partner to buy the other out. For couples in Cork city, the divorce capital of the country according to 2016 CSO figures, that means coming up with half of the average house price there of €255,000. In the Dublin region, Dún Laoghaire-Rathdown has the highest median house price (€530,000), according to the CSO. Divorce rates there are the second-lowest in the country. Until death do us part indeed.

Of course, the bank will have to agree, warns solicitor Keith Walsh. "If there is a mortgage, you cannot sell the house to the other partner without the consent of the bank. The court can make an order, but ultimately the bank will have to agree, or you can't do it."

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Whoever has primary care of the children after a couple separates, the priority shifts to that person because they need to house the children

The main sticking point is whether the remaining party’s income alone will support a mortgage. Banks won’t take maintenance payments into consideration when working this out.

The second option is putting the house on the open market and splitting the proceeds. But for those rising out of negative equity, the sale may not leave them with very much. As second-time buyers, both partners will need a deposit of 20 per cent to buy again. Moreover, the bank will now typically only lend them 3.5 times their income. In Dublin, in particular, this may not be enough.

Those of a certain age will have substantial equity – provided they didn’t remortgage in the boom. “People would have had low mortgages in the late ’90s; they remortgaged to extend, and that means they still have a large mortgage,” says Walsh.

“People who didn’t remortgage between 2000 and 2007, and it really is that short a period, they have considerable equity, the children tend to be that bit older so the house can then be sold.”

Couples living in pricey areas may have to consider more modest homes or alternative postcodes. John Molloy, managing director of Orca Financial, based in Blackrock, Co Dublin, says: "We have older couples splitting up who sell and want to buy another property in Blackrock and they might be buying an apartment in Blackrock, but an apartment is not where they want to be."

Other factors

While 50/50 is the starting point, a number of factors will shape where things end up. “The length of the marriage, would be the first thing,” says Deirdre Burke.

“The second thing would be who brought what to the table, who brought more, who invested more into the property, whose parents gave a gift or a help-out and all of those things.” So if your sweetheart provided the house deposit but you forked out for the extension, keep receipts.

Where the couple has children, their welfare is pivotal. “Whoever has primary care of the children after a couple separates, the priority shifts to that person because they need to house the children,” says Burke. The kids must have a roof over their head, though it doesn’t have be the family home.

You have people living completely separate lives under the same roof. In my view, that's happening quite a bit

“If one person has been the breadwinner and has paid for everything and they can prove all of that, and the other person has stayed at home to raise the children, the person who has stayed at home won’t be prejudiced or penalised for that. It is viewed as being an equally valid contribution.”

Deferred sale is a popular choice. “In quite a lot of divorces, the family home is not sold but it’s left in joint names and in the joint mortgage until such time as the youngest child is 18 or up to 23 if they are in further education,” says Walsh.

Separation anxiety

As well as providing for children and their primary caregiver, the court also has to consider how the other parent can be housed.

"It is very difficult to pay market rent and get a property to enable you to have your children for access that is somewhere close," says Walsh. "If you lived in Stillorgan or Kilmacud, you could be paying over €2,500 or €3,000 for a family home which you simply cannot afford to do as well as paying maintenance and other things.

“The property market has a very significant unhelpful effect on marital breakdown,” he adds. With mothers still predominantly the primary caregivers, the upshot is that fathers are living further away from their children. “People in normal jobs with normal salaries can be financially as well as emotionally in very difficult times.”

While up until a few years ago, negative equity may have kept splitting couples from signing on the dotted line, these days it’s rent. “You have people living completely separate lives under the same roof. In my view, that’s happening quite a bit,” says Walsh. Often cheaper to pay back a mortgage than to rent, the courts can be slow to cease the mortgage and a partner can’t afford to move out.

The passing of the constitutional referendum on divorce last year will make things easier. The Family Law Bill 2019 reduces the minimum living-apart period to two years during the previous three years. It also allows spouses living in the same dwelling but not in an “intimate and committed relationship” to be considered to be living apart.

“One of the great difficulties I have with my clients at the minute is that they share the same bedroom because there is no room in the house,” says Walsh. “They live in a two-bed or three-bed and they have two or three kids and they can’t literally move out of the bedroom.”

Agreeing to agree

Reaching agreement outside of the courts reduces time, cost and stress. Such agreements are more likely to be honoured too, says Burke. If you can stand to sit across the table from the person you are breaking up with, then mediation can work. But she recommends pairing this with legal advice. “It is only when you have an agreement that is put in place by solicitors in a deed of separation that it becomes binding and enforeable as a contract.”

Once agreement is reached, it can be finalised by a signed deed or a court order. “But you can make an application to court which would be on a ‘consent’ basis to literally get your agreement rubber-stamped by the court,” says Burke.

Other properties

Of course, the family home may not be the only property in the mix. “Other properties will also be divided along that initial 50/50 split, but with more focus on who bought this or who brought it with them,” says Burke. “But certainly, if someone goes into a marriage owning a suite of properties, there is a risk on marital breakdown that some of those properties will be left to the spouse. All of the assets will fall to be divided, not just the family home.”

Cohabitants

Cohabitants need to be particularly wary. To qualify for any entitlements, couples without children have to have lived together in an intimate and committed relationship for five years. Where they have children, it’s two years.

“You also have to prove that you are financially dependent on the other person, either in the relationship or by reason of the breakdown of the relationship,” says Burke. Then there’s a two-year time limit in which to bring your claim. A “cohabitants agreement”, signed before a couple moves in together can make things more straightforward in the event of a break-up.

Can’t pay, won’t pay

In the 1989 movie The War of the Roses, a divorcing couple try everything to get each other to leave the house. Crockery is flung, cats are mown over, and worse. For a country preoccupied with property, the equivalent frightener probably involves the mortgage.

“If you are on a mortgage, you are jointly liable. If your spouse stops paying, you are on the hook for the whole amount,” says Walsh. “You can initiate court proceedings and seek court orders compelling the other spouse to make the payments, there is a remedy for that. The bigger difficulty may not be that they won’t pay, but that they can’t.”

Warring parties should avoid moving out. “You shouldn’t ever move out. You absolutely shouldn’t” says Walsh. “You could either be seen to be in desertion, which isn’t helpful, and you will take the pressure off the other spouse. If you move out, there is a disincentive. Why would you bother completing on anything if you don’t need to?”

Doing it right

While property may not be the best reason to stay together, the consequences of parting may give pause for thought. “Even if you are still in the marriage, I would recommend that you have early advice,” says Burke. “You know exactly what you are facing into before you take the plunge.”

But if uncoupling is on your mind, there are ways to do it well. “I did a mediation with one couple and it was just an absolute privilege,” says Burke. “They sat there excitedly, the two of them, talking about how the children had visited the father’s new house the previous weekend to pick their rooms, to pick the colours – the mother had gone with them and it was all just wonderful.”

Prioritising the children over settling scores is a win.