The Court’s approach to the family home

Courts will be concerned to provide a home for both parties. However, the welfare of any minor children and the provision of a suitable home for them will be at the forefront of the Judge’s mind. The Court is obliged to consider the factors set out in Section 25 of The Matrimonial Causes Act 1973, this involves a look at all the circumstances of the case.   This can put the Court in a difficult position as it tries to achieve multiple aims that may be inconsistent and mutually exclusive.   These aims might include:

  • Providing a home for any minor children and the parent they live with – in many cases the children spend significant time with both parents.
  • Providing secure homes for both parties and,
  • Bringing about a fair division of the family assets.

The Court as the power to do a number of things with the family home as follows:

  • Order the house be sold so that the proceeds can be divided between the parties in whatever percentage is appropriate in the circumstances.
  • Order a transfer of the property to one of the parties with or without the payment of a lump sum to buy out the other party or,
  • Create a trust of land.

In a lot of cases there is insufficient equity in the family home to provide two new homes for the parties and therefore the Court must look at the fairest way of meeting their housing needs with the available resources and consider what sacrifices they can or should make.   In all cases there is no presumption that there should be an equal division of the family assets, the Court is expected in its assessment of fairness to crosscheck any tentative financial award against the well-known ‘yardstick of equality’.

In summary it cannot be said that simply because a property has become the family home then irrespective of when it was acquired and how the acquisition was funded it must be treated as ‘matrimonial’, or indeed the equity shared equally.

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For further help and advice on any aspects of Family Law please contact a member of the Family Law Team at any of our offices in Sleaford, Lincoln, Grantham, Spalding, Boston or Newark.

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