Divorce and the Family Home
The family home is defined primarily as a dwelling in which a married couple ordinarily resides. It also includes a dwelling in which a spouse whose protection is an issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving.
A dwelling is defined as any building or part of a building occupied as a separate dwelling. It includes any garden or other land usually occupied with the dwelling, being land that is subsidiary and ancillary to it, is required for its amenity and convenience and is not being used or developed primarily for commercial purposes. It includes a structure that is not permanently attached to the ground and a vehicle or vessel, whether mobile or not, occupied as a separate dwelling.
Where Powers Apply
A court in judicial separation or divorce proceedings may make preliminary orders under the Family Home Protection Act. This includes an order restraining a spouse from conduct which could lead to the loss of the family home and orders restricting the disposal of household goods.
On granting a divorce or judicial separation, or at any time during the lifetime of the respondent spouse, the court has the power to make a property adjustment order. The property adjustment order may apply to the family home but also to all kinds of movable and immovable property and all classes of assets, investments and goods.
The court, on granting a decree of divorce or at any time during the lifetime of the respondent spouse, may make the orders concerned. The court may make an order in mortgage proceedings by the mortgagee, during proceedings where there are repayments in arrears.
Where a third-party also claims a beneficial/equitable interest in the property concerned, he must be allowed to make representations, which are to be taken into account when determining the matter.
The court may order the transfer of the property from one spouse to the other, to a dependent member of the family or to another person specified for the benefit of that member. It may order the settlement of the property for the benefit of one or both of the spouses or any dependent member.
It may make an order varying any previously agreed settlement of property. It may make an order extinguishing or reducing any interest held by either spouse under a settlement.
The right survives during the lifetime of the other spouse, even after divorce. If either spouse remarries, the court may not make an order in favour of the remarried spouse.
Effect may be given to the order by lodging it in the Registry of Deeds or Land Registry. An order may be made by a court in default of transfer for the appointment of a person to execute the necessary documents.
The court may not apply these provisions to a family home in which either of the spouses concerned ordinarily resides with a spouse whom he or she has remarried, following divorce.
Exclusive Right to Reside
The court may make an order that a party should have an exclusive right of residence in the family home. This may be for life or such other period, definite or contingent, as the court may order.
The power to exclude a spouse from the family home has been held to be constitutional, notwithstanding the constitutional guarantee of inviolability of the dwelling house.
A right to occupy may be granted to the exclusion of the other spouse. An order may be granted to preserve stability for children or to protect the weaker spouse.
An order of exclusive residence may bind a person to transfer ownership or part ownership to the spouse with the right of residence. The order is not made for a lifetime but for a period. It may be open to review. This may arise where children, on reaching adulthood, cease to reside in the family home.
Order for Sale
Divorce will almost invariably lead to a fall in the standard of living for both former spouses. There will be a need for the provision of accommodation for both. In many cases, this may necessitate sale of the family home. The court’s discretionary power will take account of the totality of the circumstances.
The court may order the sale of the family home and the division of the proceeds in accordance with a property adjustment order or other provision. There may be an order for sale with an earmarking of the proceeds for the purchase of a new property or for other purposes. In effect, an award may be made in respect of the proceeds of the sale.
The court may make an order for the sale of the family home, subject to conditions as may be applied. The court may determine any issues between the parties regarding the ownership of the family home or an interest in it.
An order in relation to the family home may specify the manner of sale and the conditions applying to it. It may specify persons or classes of persons to whom the property must be offered. It may direct that the sale shall not have effect until the occurrence of a specified event or until the expiration of a specified period.
It may require the making of a lump sum payment or periodic payment to a specified person or persons from the proceeds of sale. It may specify such division of the proceeds between the spouses and any other person interested in the property as the court considers appropriate.
Payments shall not be made after the recipient has died or remarried, save to the extent that they had fallen due before this date.
In the making of an ancillary order in relation to a family home, the property is subject to the general jurisdiction and criteria which are to be taken into account in relation to almost all judicial separation and family home orders.
The court must have regard to the interests and needs of the spouses and any dependent family members. The court must, where practicable, ensure that proper and secure accommodation is provided for a wholly or mainly dependent spouse and dependent members of the family.
The court is also to take account of contributions made by either spouse in looking after the home, caring for the family and the extent to which future earnings have been impaired. The court is to take account of the prior standard of living of the parties, amongst other things.
In a case where a spouse’s business as a general practitioner was based in the house without children, he was allowed to continue to occupy the family home and other provision was made for his spouse.
The court may take account of the interests of all the children residing in the property who are still dependent, either in education or early in their career.
The court may take account of the historical background of the property. If it is a family property, this may be a factor in favour of it being retained by one party over the other. However, this factor will not be significant and will not be held against other more pressing considerations.
Account may be taken of the tax consequences of orders. Where a family business is run from the premises, this may be a consideration in favour of its retention.
In common with other orders, orders in respect of the family home are subject to readjustment. The court may, on application of either spouse or, in the case of a deceased spouse, a person who has a sufficient interest, such as a dependent child or, in the case of remarriage, either spouse, have regard to any new evidence or change in circumstances and may vary or discharge an order already made accordingly.
An order giving a spouse a right of occupation may be later varied, providing for sale and division of assets where circumstances so require. The general structure of Irish divorce legislation whereby there is a possibility of variation of an order remains.