How Family Law Considers Remedies
PART 5
The objective of these types of solutions in matrimonial financial relief is to allow for one of you to live in the matrimonial home, while the other moves out, with the condition that they hold a charge against its value, which is triggered by certain events.
These solutions, as with all others published here on our website, are perfectly capable of agreement without you having to step into court. We can organise it all and liaise with the court for you.
Charge against the property where there are children in the minority.
If you can’t find a way of enabling both of you to release enough capital from the sale of the home, to be rehoused, there is a solution.
To enable continuity for the children and to maintain security, sometimes it’s a good idea to suggest that one of you stays living in the home with the children and the other moves elsewhere, with the proviso that the other retains a legal charge of their percentage share against the property. This is capable of being agreed between you and ratified by a consent order approved by the court. either agreed or ordered by the court. Any sale is then suspended until the trigger kicks in. Usually, the triggers are as follows.
- The occupant remarries, cohabits for, say, six months or a year, with someone new, leaves the home voluntarily and permanently, or passes away
OR
- The youngest child reaches 18 or finished full-time education, whichever the later.
It gives certainty of a sale happening upon a certain event and preserves the asset in the meantime.
Charge against the property where there are no children.
If the situation is such that there are no children to consider, but one occupant needs a home and the other has the means to move on, then there can be an agreement between you that only specifies the remarriage clause as worded above, with a percentage charge attached of course. The occupant is therefore housed for life save for the triggering event, provided the home is not surplus to needs. If the latter were the case it follows that there may be an immediate order for sale.
Again, individual circumstances of the case will always prevail at the discretion of the court if as the last resort recourse to the court is needed to get a solution.
Occupational rent.
This can be applied, similar to the alternatives explained above, save that the occupant pays the other occupational rent. Devised to enable the non-occupying spouse with a realisable additional income, it can establish fairness depending on the circumstances.
The difficulty with this solution is that the income is taxable. Also, there can be problems determining how the rent is both assessed and paid. It is not common.
If any of these issues or any other related matters are causing you concern and you are seeking a solution, please do contact us for a free initial half-hour consultation.