It is well reported that divorce levels in Ireland, post-pandemic, reached a record high. Even more widely reported was the record high reached by the property market in Ireland, and in particular in West Cork. The Family Law Court has a constitutional obligation to ensure “proper provision” for separating families and the Court's main priority is that both parties to the marriage are properly provided for. This requirement can often be prioritized above all else including finances relating to the children - the rationale being, if mom and dad are not properly provided for, how can the children be properly provided for.
The Family Home
In most divorce matters, one of the main and most important assets of the family is the family home. The Court has a wide discretion in terms of the Orders that it can make in respect of this valuable family asset.
There are generally two main options for separating families in respect of the family home:
- Sell the home and split the proceeds.
The current upswing in the property market in West Cork has been of assistance to many separating families if a sale of the home is agreed and the net proceeds split. If there is a relatively low mortgage on the property, high market prices have ensured that both parties receive sufficient funds from their share of the net proceeds with perhaps some additional borrowings, to allow them both to be re-housed post-divorce.
- One spouse can buy out the other.
The strong property market has somewhat hindered other families in this respect. A buy-out tends to mean one spouse must come up with at least half of the net value of the house. As of last year, the average house price in Cork County was approx. €300,000 meaning at least €150,000 must be raised by one spouse. These funds tend to come from a loan, a second mortgage or family assistance. Clearly, third party assistance is needed in most buy-out options.
Of some concern to separating families is if a buy-out sum is agreed and then subsequently these agreed funds cannot be raised due to a possible future downturn in the economy. We can never predict with any great certainty just when a downturn will hit and so this is somewhat of an unknown commodity to add to the metaphorical pot. Due
to any change in finances, the funds to pay the lump sum may not be available and unfortunately, one can’t force the payment of funds that are simply not there. During the last recession, such circumstances forced so many families to stay together as people simply could not afford to divorce.
The Rental Market
An additional unseen worry for some separating families, is the current rental crisis. A buy-out situation generally leads to one spouse needing to rent a property. If there are children of the marriage, the spouse who has moved out of the home, would ideally wish for their new home to be close to the children to facilitate access ad be sufficiently large to accommodate the children comfortably. As of last year, the average rental price for a house in Cork County was approx. €1,200.00 per month. This can be exceptionally financially difficult on both spouses.
Agreeing to agree
A huge benefit to consulting a family law solicitor is the ability to successfully agree to agree. Agreeing to agree can save the separating family a lot of heartache, stress, time and more importantly money. Consulting with a specialist solicitor allows you to see exactly what it is you are likely to face if you separate. More importantly, seeking to find an agreement with your spouse allows you to have more control over your life, post-divorce. The Irish Courts are very willing to honour an agreement between spouses where both spouses have had the benefit of independent legal advice and proper provision has been made. Accordingly, the divorce process, when properly negotiated, does not need to be adversarial.
Family law can be a minefield and hugely stressful and distressing. Wolfe & Co LLP Solicitors are here to support you and to help you negotiate and navigate your way towards your new future.
By Aislinn Collins Solicitor.
This article is for general information purposes/general overview only and does not constitute legal or other professional advice. We recommend seeking legal advice to interpret and advise on any aspect of the law.
January 2023 Wolfe & Co. LLP Solicitors