Family and shared homes
The law in Ireland distinguishes between a family home and a shared home.
Family home (married couples)
A family home primarily means a home in which a married couple ordinarily lives. Some family homes are held in the sole name of just one spouse. However, 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.
Shared home (civil partners)
According to the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, a shared home is a home where civil partners ordinarily live.
Your propterty rights if you are cohabiting
If you are cohabiting (living together but not married or in a civil partnership) and your relationship breaks down, the property will belong to the person who holds the legal title to the home. This could be one of you, or both of you. However, the other person may have a right to redress through the courts. To find out more, read our page Property rights and the breakdown of a relationship.
Protection of the family or shared home
There are laws to prevent one spouse or civil partner from selling, mortgaging, leasing or transferring the family or shared home without the agreement of the other spouse or civil partner. This is particularly important when the home is held in the name of only one spouse or civil partner.
However, the courts can remove the need for the other person's agreement if it thinks that the withholding of consent is unreasonable. You can also apply to the courts for an order to restrain the other spouse or civil partner from doing anything that might reduce your or their interest in the shared home, or make it unsuitable to live in.
You can inform the Property Registration Authority that you are the spouse or 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 do this and if you don’t, it does not affect your rights as a spouse or civil partner.
There is no stamp duty or registry fees payable on the transfer of a family home or shared home from the name of one person in marriage or civil partnership to a joint tenancy.
Property adjustment order
One of the biggest difficulties facing separating couples is what should happen to their family or shared home. If agreement cannot be reached as to who will occupy and own the home, the court can make an order in relation to it.
An order in relation to the family or shared home is usually applied for when applying for a decree of judicial separation, divorce or dissolution, and it 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 or civil partner and any dependent children. The court order will state the following:
- Who has the right to live in the family or shared home and for how long
- Who has ownership rights in the family or shared home and what share each partner owns
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 or civil partner who is leaving the home. An exclusion order reflects the recognition of the courts that it is not practical for separated couples to occupy the same house, or for the partner who leaves to retain a key and have free access to the house. It does not imply any unacceptable conduct on the part of the partner who is excluded from the house.
Who has ownership rights in the home and what share does each person have?
Whether you are considering separating or applying for a decree of divorce or dissolution, it is advisable to get legal advice.
If you choose to hire a private solicitor, there is no fixed rate of charges for legal fees in Ireland. You should get 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 (income) and let you know if you are eligible. Legal aid is not typically free and everyone must normally pay a contribution towards costs.