For most couples, the family home is usually the major asset to be divided up in a property settlement. When dividing the family home, separating couples should consider three main issues:
1. The value of the family home
Where couples can agree on value of the family home, this agreement can be recorded and the family home can be built into the property settlement at that agreed value. Where couples can’t agree, experts can be called upon to determine the current market value of the property. The Court generally prefers that such valuations be prepared by a single expert, based on joint instructions from the separated couple, and at their joint expense. Where there is competing evidence as to valuation the Court must decide which evidence it prefers, and if it is unable to do so, it can order the sale of the property to be determined by market value.
2. Home ownership
Irrespective of whether the family home is registered in the name of one or both spouses, it can be the subject of property settlement orders after separation. However, it is important to take advice to ensure that this important asset is preserved while a property settlement outcome is determined. Where the title to the family home stands in the sole name of one spouse, advice should be taken about seeking an undertaking from that spouse not to encumber it, or deal with its title, until a final outcome is in place, and failing that, about registering a Caveat over the title of the property or seeking orders restraining any dealings with it. Early steps may need to be taken (in seeking orders from a Court) if there is any evidence to suggest that the spouse who is the registered owner of the property has implemented, or intends to implement, any transaction which will remove it from the asset pool, diminish its value, or otherwise affect the property settlement outcomes.
Irrespective of which spouse occupies the family home during the settlement period (either by negotiation or via litigation) the family home will still be in the property settlement asset pool, and the Court can still make orders as to its future ownership. This is the case whether it stands in the name of one spouse, or both spouses.