When you can’t agree who should have the house by John Bolch

Children|Divorce | 12 Feb 2014 4

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In the early days of running my blog I remember posting a story about a particularly acrimonious divorce involving a couple in New York. They were unable to agree anything. In particular, they both wanted to remain in the matrimonial home, despite owning another residence just two doors away.

When the case went to court the judge, perhaps exasperated with the case, initially ruled that the couple should divide the property in two and each live in one half. After another four years of bitter and expensive fighting, the court eventually decided that the property should be sold and the proceeds divided equally.

Over my years practising family law I came across many cases where both parties had such an attachment to the former matrimonial home that they both wanted to keep it. This is understandable, particularly where the property has been their home for many years, or where they have spent a great deal of time and effort getting it just as they want.

Unfortunately, dividing the property will almost certainly not possible or practical in most cases, so the parties are left with two alternatives: agree the matter, or argue it before the court.

The problem, of course, is that if they argue it before the court the parties will end up spending large sums in legal costs, most likely only for the judge to order a sale, unless there is some compelling reason otherwise. In the worst cases the legal costs can be so great that they eat up all of the equity in the property.

Accordingly, my advice is to think very carefully before arguing over who should have the property, and if there is an argument that can’t be quickly resolved then just agree a sale, rather than wasting a lot of money on legal fees. I know this is easy to say, but it does have the advantage of ensuring that neither party is left resenting the fact that the other party has the house and they don’t.

If you can agree a sale, then the only other matters that need to be sorted out are the sale price and how the proceeds should be divided.

The sale price is usually agreed, based upon the advice of the selling agents. If it cannot be agreed, then an independent expert can be used to determine the price.

As to the division of the net proceeds of sale (after payment of any mortgage, legal and estate agents fees), these will be divided equally, unless there is a good reason why not, such as the greater needs of one party.

Obviously, the advice above does not apply in those cases where there are dependent children and the house is needed as their home. In such cases there would not normally be a sale until the children are no longer dependent.

The above is, of course, is a very simplified look at what can be a very complex matter, and there are no ‘hard and fast’ rules when it comes to sorting out financial and property matters on divorce. You should, therefore, seek expert legal advice before proceeding.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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    1. L says:

      my question is not about the house, but the endowment policies that we have been paying into to drive our interest only mortgage. Our mortgage payments, plus the premiums for the (3) endowment policies have always come out of our joint account. However the endowment policies are all in my husbands name. As a result i have no access to the paperwork for the policies. I believe i am entitled to 50% value of these endowments but my husband disagrees, saying that they are his and his alone. Surely the fact that they have been paid for from our joint account overrules whose name is on the policies?

      • Marilyn Stowe says:

        Dear L
        All property owned by either of you is available for sharing irrespective of whose name it is in. There is no formula for division of assets. Usually it’s divided according to reasonable need of the parties although a 50/50 split has grown up as a starting point.

      • Marilyn Stowe says:

        Dear L
        It doesn’t matter whose name they are in. You are entitled to know their value and the court will order production of details of their value and take their value into account in dividing the assets between you.

      • Stitchedup says:

        Your husband is letting himself in for a big let down. Even if you are not married i.e. cohabiting, you would have a very good chanced of claiming a trust has been constructed with regard to the endowment policies in his name as the premiums have been paid out of joint monies i.e. a joint account.

        As Marilyn has pointed out, as you were/are married you will definitely get a share, starting point usually being 50/50.

        I’m not a lawyer but have experience of being caught out by constructive trusts in a cohabitation scenario.

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