The Ex-Files: Jeremy Sutton on dividing the family home when one person wants to stay

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OPINION:

Q: My husband and I separated eight months ago. I have stayed in our family home while he's been renting but now he wants to sell our home. I can't afford to buy him out of the property, but I want to be able to stay here for as long as possible because it's the only home our three children have lived in. What can I do?

A: Often when parties separate and their primary asset is the family home, issues arise around occupation or the sale of that property to realise equity and make it available for division as soon as possible. This is particularly so in the current housing climate where it is difficult for parties to purchase property separately due to fast-increasing house prices.

Parties may not always agree on the sale of the family home, where there are children who live in the family home, and in these cases, there are various tools available to each party to try to obtain the result they want.

Orders for sale

Section 25 of the Property (Relationships) Act 1976 ("PRA") enables the Family Court to make an order for the sale of any relationship property at any time. This section is often used to request the sale of the family home and division of the sale proceeds as soon as possible instead of at the conclusion of court proceedings which can often take 12-18 months.

The usual argument by the party applying in these cases is that the sale of the family home is inevitable and ought to happen sooner rather than later to decrease mortgage debt and expenses and/or to realise capital to allow the parties to finance new separate homes.

In situations where one party is clearly able to purchase the other party's share in the family home, the court should allow that to happen instead of ordering a sale to a third party. A current market valuation will be necessary in these circumstances.

Occupation orders

Alternatively, if a party wants to remain in occupation of the family home, they can apply for an occupation order under section 27 of the PRA.

Under that section the court has the power to make an order granting one party the right to sole occupation of the family home for any period the court thinks fit. This means that party will be permitted to continue living in the family home while the other party will not be permitted access to the property. Similar orders can be made under section 28 in respect of tenancies.

One of the factors the court is to consider in making decisions about occupation orders is the need to provide a home for any minor or dependent child(ren) of the relationship.

Family violence

In situations where there is violence and a protection order is granted, the court can also make an occupation order under the Family Violence Act 2018 ("FVA").

Family Violence is given a wide definition and can include physical, psychological and financial violence. If you need urgent help, then you can contact organisations such as Shine. Shine is a charity focused on helping families experiencing family violence. They are highly skilled and can support you and provide more guidance around dealing with violent situations. You can call Shine's helpline on 0508 744 633.

An occupation order under section 116 of the FVA can be made where it is necessary to meet the accommodation needs of a party and/or the children, or to enable a party or child to continue existing childcare, education, training or employment arrangements, or where it is in the best interests of a child.

These orders can also be made on an urgent without-notice basis.

Postponement orders

A postponement order under section 26A of the PRA allows the court to delay the division of relationship property, including the family home, if satisfied that immediate division would cause undue hardship for the party who is the principal provider of ongoing daily care for any dependent children of the relationship. The order can last for as long as necessary to alleviate the undue hardship.

Postponement orders are rarely applied for or made.

The court's approach

Unfortunately, despite the availability of occupation and postponement orders, children's interests are not often a major factor in PRA proceedings. Instead, the focus tends to be on the adults' propriety interests.

While the court will often accept there should be an adjustment period immediately following separation, if the party opposing sale is unable to purchase the other party's share the court will usually grant an order a sale.

The exception is where there is family violence, in which case an occupation order can be made in conjunction with a protection order.