habitual residence

Read the latest articles on Family Law from our expert Family Law solicitors here at Evolve Family Law in Manchester & Cheshire.

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Divorce and Selling the Family Home

As Manchester divorce and family finance solicitors advising separated couples we get a lot of calls from husbands or wives concerned about divorce and selling the family home. In this blog, our family law solicitors look at the issues and your best options when it comes to divorce and selling the family home. For expert family law advice call our team or complete our online enquiry form. Should I sell the family home? Sadly, some divorcing couples don’t have a choice: the family home has to be sold. For others, you can make the financial or personal choice to either sell up, transfer the property to your husband or wife or keep the property yourself. Often people have a strong knee-jerk reaction that they must keep the family home at all costs whilst others are equally adamant that they don’t want to stay in the family home because of the memories associated with it. Undoubtedly selling a family home involves hassle so it is best to consider all your options and the practicalities of a move, such as: How much is the family home worth and how much will I need to spend to buy a new property? If I stay at the family home would the mortgage company agree to transfer the mortgage into my name? If I sell and buy another property what is the maximum mortgage that I could get? Can I afford the monthly mortgage payments and the upkeep on the family home if I get spousal maintenance or child support or if I have to make those payments out of my salary? Is it better to make a fresh start or to downsize so I can have some cash to spend on holidays or little luxuries? Will my husband or wife agree to the sale of the family home? The effect of market conditions on your decision to sell the family home. Experienced family law solicitors encourage separating couples to look at whether they should sell the family home or not from a short and long-term perspective so you make the right decision for you and your family. However, the current housing market conditions may inevitably have some influence on your decision-making process because: You are worried about the time to achieve a sale and getting your sale price You are concerned about getting the mortgage on the family home transferred to you or taking out a mortgage on a new property and mortgage rates You don’t feel that your job is secure or you are worried that your husband or wife could be at risk of being made redundant and redundancy will affect their ability to pay you child support and spousal maintenance With or without the pressures of a cost-of-living crisis the decision to sell the family home, or resolving which one of you should stay at the family home, is always stressful. That is why it is best to take time over your decision and not be too influenced by the views of teenage children who may be leaving home to go to university soon leaving you with a house that is too large for you and without sufficient money to pay for life’s little luxuries or to pay for car repairs. If you end up with the family home the trade-off may be that you don’t get a share of your husband or wife’s pension. That may mean you eventually have to sell the family home to fund your retirement. However, the released equity on the sale of the family home won’t necessarily give you the same income return that a pension sharing order would have done. That’s why it is best to carefully consider if the short-term hassle of selling the family home and moving is in your long-term best interests if it means you get a pension sharing order. [related_posts] The best way to divorce and sell the family home. If you are getting divorced and thinking about selling the family home here are our tips on selling the family home whilst separating from a partner or getting divorced: Is it realistic for you both to live at the family home until it is sold bearing in mind that once the property is sold it will take time for the conveyancing process to reach completion? It is advisable to always take legal advice before leaving the family home as doing so may make your husband or wife less keen to achieve a sale. However, if the atmosphere at home is affecting you, then one option would be for one of you to rent a property or stay with family until the family home is sold Consult with your husband or wife about the sale price and choice of estate agent and make sure that the estate agent keeps you both informed about viewings and feedback from prospective buyers. That way if the estate agent recommends a reduction in the sale price your spouse is more likely to be willing to consider this Get your paperwork in order as requests for documents from your buyer’s solicitor can delay the sale of the family home. If you have had work carried out at the property you need to locate your planning and building regulation documents, electrical, gas and FENSA certificates or organise duplicate paperwork Agree on how you will divide the household contents as the last thing that you are likely to want to do is try and sort out household contents at the date of the sale. It is best to list the household contents and both sign the agreed schedule and the division of contents between the two of you and highlight what items, if any, will be sold with the house Think about whether you want to sell the family home if you haven’t reached a financial settlement with your husband or wife. It is common for a sale of the family home to be achieved before you reach a full financial settlement including how pensions, business assets and investments are split as well as whether spousal maintenance should be paid and for how long. If you are happy with the sale price of the family home and fear that you will risk losing your buyer if you delay you could agree with your husband or wife that the net proceeds of the sale (after discharging the mortgage, conveyancing solicitor and estate agent fees) are kept in a joint account or by a solicitor until an agreement is reached or a financial court order is made. In some situations, you can agree to the release of some extra money to allow you to buy your planned new property or to discharge family debts If your spouse won’t agree to a sale of the family home get a court order. If you are certain that the family home has to be sold as it isn’t financially possible for either of you to take it on because the mortgage company won’t transfer the existing mortgage into one of your names or you won’t be able to afford the mortgage on one salary then speak to Evolve Family Law about starting financial proceedings for an order for sale of the family home. If your husband or wife won’t cooperate with the sale of the property then a family judge has the power to make orders about the sale price, and the choice of estate agent. The judge can even sign the paperwork to sell the property if your ex-partner refuses to sign the contract to sell the house or the deed of transfer How can Evolve Family Law solicitors help? At Evolve Family Law we recognise that deciding to separate and sell the family home is hard. Often, the decision is finely balanced so you need specialist help to look at all your financial settlement options and work out whether the option of selling the family home is the best one for you. We will support you in negotiating a financial settlement with your ex-partner so you can move on with your life. For expert family law advice call our team or complete our online enquiry form.  
Robin Charrot
Feb 16, 2024   ·   7 minute read
What Does Habitual Residence Mean?

What Does Habitual Residence Mean?

In this blog, children and child abduction solicitor, Louise Halford, looks at what habitual residence means and why it is important in children law proceedings, and in applications for child arrangement orders and disputes over parental child abduction. For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form. Why is your child’s habitual residence important? For international families the legal concept of habitual residence in children law is important. If your child is classed as habitually resident in England, then the court in England and Wales will have the jurisdiction to decide where your child should live, who they should have contact with and whether they can live overseas. A child’s habitual residence can be complicated because a child can be habitually resident in the UK even though the child is not a British citizen and nor are their parents. If your family is in the UK on a work visa or family visa or dependant visa, your child may be habitually resident in England. If you are planning to leave the UK with your child it is best to speak to a children law solicitor to see if your child may be habitually resident in the UK and to understand the steps you need to take to legally take your child out of the UK. If your child is habitually resident, and you don’t follow the correct steps and procedures before leaving the UK with your child, then you could be committing a child abduction offence. The English court could order that your child is returned to England so the English court can decide on where your child should live. What does habitual residence mean? Put simply, habitual residence means where you normally live. A child can be habitually resident in a country even though the child’s parents don’t live in that country. Habitual residence does not have anything to do with your nationality as you don’t need to be a British citizen or have indefinite leave to remain to be habitually resident in the UK. It is a question of fact. When assessing if a child is habitually resident in England, a child abduction solicitor or children court will look at how integrated the child is. For example, does the child go to school in the UK? Is the child enrolled at sports or other leisure groups in the UK? [related_posts] What happens if my child is habitually resident in England? If your child is habitually resident in England then the English court has jurisdiction to decide where your child should live if there is a dispute with the other parent. Under English law you can't take a child to live overseas without the agreement of the other parent and the consent of anyone else who has parental responsibility for the child. If you can't get written permission you can apply to court for a relocation order. If you leave the UK without a relocation order or written consent then you could be accused of parental child abduction and your child could be made the subject of a return order. The law may seem bizarre to some parents, especially when you are intending to return to a home country or a country where you have strong family or other ties. However, children law solicitors recommend that you get legal advice on the meaning of habitual residence and how the legal concept may affect you and your family and the children law order solutions available to you so you can go ahead with your plans to leave the UK with your child. For expert child abduction and children law advice call our team of specialist divorce lawyers or complete our online enquiry form.
Louise Halford
Feb 10, 2016   ·   4 minute read