Both married partners have the right to remain in the home, irrespective of who bought it or in whose name the mortgage was taken out.This applies unless a court orders otherwise, which may be done, for example, in the course of a divorce.
The law on a marriage breakdown allows for discretion to be exercised in the apportionment of all the relevant assets, however the following statutory guidelines must be considered in each individual case, in accordance with the principles enshrined in the Matrimonial Causes (Northern Ireland) Order 1978:
·the income, earning, property and other financial resources which each of the parties to the marriage has and is likely to have in the forseeable future;
·the financial needs, obligations and responsibilities which each of each of the parties to the marriage has or is likely to have in the forseeable future;
·the standard of living enjoyed by the family before the breakdown of the marriage;
·the age of each party to the marriage and the duration of the marriage;
·any physical or mental disability of either of the parties in the marriage;
·the contributions which each of the parties has made or is likely in the forseeable future to make to the welfare of the family;
·and finally the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it.
The case of White v White, a concept was introduced, which is commonly referred to as the ‘yardstick of equality’ and which resulted in a new approach taken by the courts which did not discriminate against the child-carer and stay at home parent by putting an equal value on his or her contributions to the marriage, as compared to the money-earner.
Since White v White, there have been further developments in this field, but it is still a leading case, as it represented a revolutionary change in the thinking on financial applications to the court on divorce. Need was no longer the yardstick. It and the other factors in the Matrimonial Causes Order must all be considered and in particular the Court must give effect to the principle of non-discrimination and equality of division.
One spouse could buy the other out and keep the house or the property could be sold and the proceeds divided. If there are children, a parent will often want to stay put to maintain as much continuity as possible. When this is the case, the other partner may receive other assets to even up the distribution, or may agree to defer receiving the balance until the property is sold when the children move out or the partner remarries. This is commonly known as a Mesher Order.
The downside with a traditional Mesher Order is that both parties then remain on the mortgage which often makes it very difficult for the person who has moved out to obtain another mortgage to buy somewhere else,says
A more complicated form of Mesher Order, therefore, involves the transfer of the house and the mortgage into the name of the primary carer but with the other spouse retaining a percentage interest in the house secured by way of a second mortgage in their favour. This is known as a deferred charge Mesher.
