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One of the most urgent priorities for us when families separate is to ensure that everyone is properly housed. Other priorities, no less important, are to provide continuity and support for any children, and to ensure that so far as possible everyone has access to enough money to live on. Most of the time, these priorities compete to a certain degree – for example, when some of the family has to be housed separately, that often has an impact on the money available for the rest and may mean that arrangements have to change for everyone, even if that affects continuity for the children.

Often at least one of the adults tends to want to preserve the former matrimonial home, usually on the basis that it is important for the children to do so. Today we bring you news of a recent case where a husband had to ask a judge to authorise the sale of the family home while the wife and children still lived in it, and before the final decision was made about the division of money on divorce. The wife refused to agree. For reasons that will become clear, the judge made that order.

This couple were married for 16 years. The husband is English and the wife American, and during the marriage they lived for a time in California and a time in London. They bought their London home, now worth about £2.5m but mortgaged to a level of £1.2m, in 2011. The husband’s elderly mother contributed just over half a million pounds to the purchase of the home and lived in an annex at the bottom of the garden. The two children, aged 10 and 14, are educated privately. On separation in 2014, the husband moved out to a rented place, and the wife and children stayed in the home.

Despite the value of the home, the court heard that the family’s net worth was only £105,864. There were a high level of unpaid debts, including tax and legal fees, and the court also criticised the husband’s “reckless and irresponsible conduct” in continuing to spend at a significant rate during the proceedings. Without paying for living expenses or any personal spending, the family was running at a deficit of £20,000 per year. Realistically, bankruptcy was just around the corner.

Unfortunately, as you may well have surmised by now, the end of the marriage was not amicable. Not only were this couple involved in court proceedings about their finances, but there was also an earlier dispute about whether or not the children should go with the mother to live in California – the court rejected the mother’s proposals for life abroad for being too imprecise. After that, the mother withdrew her consent to the sale of the former family home, something which the prompted the judge to say she was “sticking her head in the sand like an ostrich” about the family’s financial position. At the same time, the husband’s mother (in her annex at the bottom of the garden) described her unhappy position as being “like a prisoner in [her] own home”.

For those interested in the legal side, this case is technically more complex than some as the husband was the sole owner of the house, and the wife (or rather her lawyers) had taken various steps to protect her position and stop it from being sold from under her. This meant that it was important for the court to spell out under which provisions it could make the orders needed to remove the wife’s rights and allow the husband to proceed to sell. It also shows clearly the dangers involved where only one of a married couple owns a property, and the couple separates: if the wife had not protected her rights as an occupier of the home, her husband might have sold without the involvement of the court. Nevertheless, as it was, the court found there was no option but for the sale to proceed as quickly as possible.

After summarising the financial and litigation circumstances of the family, the judge gave everyone a reality check. He said, “The effect of my order is to impose financial sanity on this family. That is needed for the health, safety and well-being of the parties and their children as the alternative is insolvency with all the psychological damage that that entails.” He found that if the mortgage and running costs of the house were removed from the equation, the husband could afford to pay the wife and children’s rent and living expenses, so he ordered that the legal barriers to the sale of the house would be removed.

It’s difficult to know what the court could have done differently in this case as the financial position of the family was so dire, but one can perhaps understand how the wife would feel rather hard-done-by. After all, the husband had spent money recklessly and had finished up getting his way and her and the children out of the house to dig him out of his financial hole. On the other hand, the judge has made it clear that the husband’s spending will have to be taken into account in the final reckoning of the financial division between them. On this occasion, it was a question of doing what was necessary to stop things getting worse.

For other couples, this can be seen as an indicator that although the court will want to do what it can to preserve continuity for children and families going through the pain and stress of divorce, it will not do this in all cases nor at all costs. The court will take a practical approach if the people involved are not able to. If you have any questions about housing during divorce or any other family law matter, do give us a call on 01223 443333 to make an appointment with Adam, Tricia, Gail, Sue or Simon.