Dear Reader,
The “family home” is defined according to Section 2 (1) of the family Home Protection Act 1976 as “primarily a dwelling in which a married couple ordinarily reside”. The family home cannot be sold without the consent of both spouses.
The fact that the family home is in the name of one spouse does not negate the fact that the consent of the non-owning spouse is required for a sale. Section 3(1)of the 1976 Act states that where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to the purported conveyance shall be void.
Where a spouse is departing the family home because it is not reasonable or practical to remain, the court will usually award an amount to be given to provide alternative accommodation, provided that the remaining spouse has sufficient assets and income to provide this lump sum.
The court can make a number of Property Adjustment Orders and Sale Orders in relation to the family home, such as the transfer of the family home which is in the name of one spouse to the non-owning spouse, extinguishment or removal of the interest of a spouse in the family home or sale of the family home.
The transfer of property can be made whether or not one spouse has made a financial contribution to the purchase of the property.
The court can also allow a spouse to remain in the family home until such time as the children reach a certain age and then direct that the family home be sold and the proceeds divided between spouses or given to one particular spouse.
In the case of C vs. C, the applicant husband had a strong claim to the family home that he had previously inherited, and his wife had not contributed to the property either directly or indirectly.
The court took the view that the division of assets was not appropriate in this case in the circumstances where a proper provision was still made for the wife by providing her with a new house and maintenance for the children and herself.
However, it should be noted that the facts of every case are different, and there are no strict rules to determine how assets should be dealt with in this type of proceeding.
In the case of COC vs DOC, the court found that the needs of the family as a whole must be considered. The family home was the only property to retain any realistic equity given the precarious nature of the husband’s financial circumstances. The needs of the wife and the dependent children were most closely met by transferring the entire interest in the family home to the wife.
- Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.
Email: info@walshandpartners.ie
- While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.
