Family and shared homes
The law in Ireland distinguishes between a family home and a shared home.
A family home primarily means, a dwelling in which a married couple ordinarily resides. Whilst some family homes are held in the sole name of one spouse, many family homes are held in the names of both spouses as a joint tenancy as this is often a condition of the mortgage used to buy the house. The Government encourages spouses to put the family home into their joint names and there is no stamp duty or registry fees payable on the transfer of a family home into a joint tenancy.
According to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 a shared home is a dwelling where civil partners ordinarily reside. Where the shared home is held in the name of one of the civil partners, there is no stamp duty or registry fees payable on the transfer of the shared home into both their names as a joint tenancy.
Protection is provided for the family home of a married couple under the Family Home Protection Act 1976 as amended by the Family Law Act 1995. Similar protection is provided for the shared home of civil partners by the civil partnership legislation.
This legislation prevents one spouse/civil partner from selling, mortgaging, leasing or transferring the family/shared home without the consent of the other spouse/civil partner. The courts can dispense with the other spouse's/civil partner’s consent where it considers that the withholding of consent is unreasonable. A spouse/civil partner is also able to apply to the courts for orders restraining the other spouse/civil partner from doing anything that might reduce his or her interest in the shared home or make it unsuitable to live in.
A spouse/civil partner may inform the Property Registration Authority that he or she is the spouse/civil partner of a property owner. A notice to that effect will then be registered. There is no charge for such a registration. There is no requirement to enter such a registration and its absence does not affect the rights of a spouse/civil partner.
The protection provided by the legislation is particularly important when the home is held in the name of only one spouse/civil partner.
Property adjustment order
One of the biggest problems facing separating couples/partners is what should happen to their family/shared home. If agreement cannot be reached as to who will occupy and own the family/shared home, the court can make an order in relation to it.
An order in relation to the family/shared home is usually applied for when applying for a decree of judicial separation, divorce or dissolution and is referred to as a property adjustment order.
In making a property adjustment order, a court will consider all of the family circumstances and will take into account the welfare of a dependent spouse/civil partner and any dependent children. The court order will state the following:
- Who has the right to live in the family/shared home and for how long
- Who has ownership rights in the family/shared home and what share does each spouse/civil partner own
Who has the right to live in the home and for how long?
In the case of a married couple where there are children, the spouse with whom the children live will often be given the right to live in the family home until the youngest child reaches 18 or 23. This can provide a sense of continuity for children who are experiencing the separation of their parents. The Children and Family Relationships Act 2015 has amended the civil partnership legislation to provide similar protection for dependent children of civil partners.
The court can make an exclusion order in relation to the spouse/civil partner who is leaving the family/shared home. An exclusion order reflects the recognition of the courts that it is not practical for separated couples/partners to occupy the same house or for the spouses/civil partners who leave to retain a key and have free access to the house. It does not imply any unacceptable conduct on the part of the spouses/civil partners who are excluded from the house.
Who has ownership rights in the home and what share does each spouse/civil partner own?
A court can order that the house is sold and the proceeds divided equally or in whatever shares it considers just. It can order that the sale be deferred for a specified period of time. It can order the transfer of the house into joint names or into the sole name of one spouse/civil partner. If the house is held under a tenancy from a local authority, it can order the transfer of the tenancy.
How to apply
Whether you are considering separating or applying for a decree of divorce/dissolution it is advisable to get legal advice.
If you choose to hire a private solicitor, you should be aware that there is no fixed rate of charges for legal fees in Ireland. You are advised to obtain some quotes before deciding on a legal firm. Contact information for solicitors firms throughout Ireland is available on the Law Society website.
To enquire whether you are eligible for legal aid or advice from the Legal Aid Board, contact your nearest law centre. The law centre staff will assess your means and advise on financial eligibility. Legal aid is not free and everyone must pay a contribution towards costs.
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.