How do you split the matrimonial home 50-50?

When two married people call it quits, who or what decides how and if the matrimonial home is split 50-50? To explore this, there are a few things to consider.

What is the matrimonial home?

In first determining whether or not a spouse is entitled to a share of the matrimonial home, the court must first satisfy itself that the subject premises falls within the definition of a matrimonial home as per Section 2 of The Property (Rights of Spouses) Act (PROSA).

The section defines a matrimonial home as a "family home", meaning the dwelling house that is wholly owned by either or both of the spouses and used habitually, or from time to time by the spouses as the only or principal family residence. A key question that the applicant can ask themselves prior to applying is whether or not this was the primary place of residence during the course of the marriage or cohabitation?

How can one get 50 per cent of the matrimonial home?

Having satisfied the court that the premises is in fact the matrimonial home, then the court will thereafter consider Section 6 of PROSA, which states that each spouse shall be entitled to one-half share of the home, family home if the court is satisfied that: (a) the parties are divorced or there is a termination of cohabitation; (b) the marriage is nullified; (c) where a husband and wife have separated and there is no likelihood of reconciliation. This means that as long as the applicant can show the court that both parties have separated and that there will be no reconciliation, then the court will move to order half share of the family home.

Shifting the 50-50 presumption

Unfortunately, despite making the case that the property is in fact the matrimonial home, and that you are entitled to half share, Section 7 allows your spouse to shift the presumption.

The onus of disproving the applicability of the Section 6 presumption, however, is on the spouse who alleges that it would be unreasonable or unjust to apply it.

While the list is not exhaustive, the act stipulates that the following considerations may be taken into account: (a) whether the family home was inherited by one spouse; (b) whether the family home was already owned by one spouse at the time of the marriage or the beginning of cohabitation; (c) whether or not the marriage is of short duration.

It should be noted is that the existence of one of those factors listed in Section 7 does not lead automatically to the entire interest being allocated to one or other of the spouses. What may be gleaned from the section is that each of these three factors provides a gateway, whereby the court may consider other elements of the relationship between the spouses in order to decide whether to adjust the equal-share rule. It is at the stage of assessing one or other of those factors, but not otherwise, that matters such as the level of contribution by each party to the matrimonial home, their respective ages, behaviour, and other property holdings become relevant for consideration.

If, and only if the other spouse can show that one of these factors exists, may the court depart from the equal-share rule. In the absence of any one of these factors, then the issue of contribution becomes irrelevant.