Impact Of Current Housing Crisis In Ireland On Separating Couples

In a recent decision of  R -v- M  the High Court granted a divorce in circumstances where the parties agreed to continue to live separate and apart in their family home after Divorce.  Here in this article Karen Tobin, Partner, Family Law at CKT examines the decision and its implications for separating couples and their children in the context of the current housing crisis. 

Background

This case arose by way of appeal to the High Court where the parties reached an agreement to continue living together after their divorce until the children finished their education, the Circuit Court refused to grant the divorce for this specific reason.

Is it a viable solution for separating couples and their children to remain living together, albeit separate and apart, in the family home  in the face of the current housing crisis?

When a relationship breaks down the parties will invariably agree, or will be ordered by the court, to physically separate in terms of their living arrangements.  In many cases the proceeds of sale of the family home combined with a mortgage will not be sufficient for parties to reaccommodate themselves

Where the parties have dependent children, security of accommodation for the children while they remain dependent will be a priority.  The primary carer is likely to remain in the family home to the exclusion of the other parent where there is insufficient equity in the family home for the parties to rehouse themselves and the children.   In these circumstances, common practice dictates that the family home is sold when the youngest child is finished in full time education or on reaching the age of 23, whichever event occurs first. The proceeds of sale are divided in a certain manner, as agreed by the parties, or ordered by the court at the time of the parties’ divorce.

The current housing crisis is extremely problematic for separating couples and for some parties they simply cannot afford to separate there living arrangements for the following reasons.

• There are significant implications for the party vacating the family home. The housing supply in the rental market together with the cost of rental accommodation may force a party into shared rental accommodation or returning to live with their parents for several years. This invariably impacts access arrangements, in particular, overnight access.
• The party who vacates the family home is likely to remain named on the mortgage until the property is sold. This effects the parties’ ability to take out another mortgage until the family home is sold and the mortgage is cleared, which at that point borrowing ability may be reduced.

The Law:

Section 15(2(a) of the Family Law (Divorce) Act provides that “where a decree of divorce is granted, it is not possible for the spouses concerned to live together”.

In the current case the High Court observed that there was nothing in the legislation, to support the view that parties seeking a decree of divorce must establish that they will live in separate dwellings afterwards.

The court was satisfied that the motivation of the parties in reaching their agreement to continue residing separately and apart under the one roof was bona fide.

The court accepted that the parties had been living separately and apart since 2017 and upheld the agreement they had reached, both parties were legally represented.  The court opined that “public policy should encourage realistic negotiation and settlement with a view to reducing or avoiding the detrimental impact of the breakdown on the welfare of the children involved”.

Conclusion

This case represents the harsh reality for many separating couples, and it may become more customary and common practice in the face of the current housing crisis, however it will not be a workable solution for many and only a realistic option in certain limited situations.