4 January 2023
Upon divorce or separation, the home may be allocated to either party. This happens particularly when there is joint ownership of a home and the home is not sold.
The person who wants to be allocated the home must then buy out the other person by paying half of the equity. This does not include the deduction of notional brokerage fees, as there are none at allocation. In this blog, I explain whether it is possible to defer the claim for division of the home.
Occasionally, in exceptional situations, it is possible to apply to the Court to defer the division. You must then show that you have a compelling interest in deferring the division. And that immediate division would harm your interests. The Court must then weigh the interests of the person who currently wants the home divided and the person who wants to defer the division. Such an application was at issue in a ruling by the North Holland District Court in April this year. Here, the husband requested a deferral from the Court due to various circumstances.
The wife, on the other hand, wanted swift division as she needed the funds from the equity for her livelihood. She did not want to apply for a benefit from the Municipality. As she would then be in debt to the Municipality. She would then have to repay that debt when the home was allocated to the husband in the future. The husband invoked numerous circumstances, including the fact that he lived in the home with his children, who were not the children of the wife.
Other reasons he cited were that he did not qualify for social housing, finding rented accommodation in the private sector was difficult for him and his children, partly because he could not yet show that he had sufficient income, as he had just started working as an independent entrepreneur. Moreover, rent would be much higher the mortgage payments which, incidentally, the husband had always paid on time. In addition, because he had just started working as an independent entrepreneur, he could not apply for financing as he was unable to produce annual figures for three consecutive years. Although the husband was already generating a good income, he was unable to demonstrate this for the past three years.
Given these specific circumstances, the Court granted the husband’s application for a deferral of the division, although the deferral was granted for a short period until 1 January 2024. According to the Court, the claim to divide the home at this point in time can be considered contrary to the reasonableness and fairness to which the parties are bound towards each other. The Court also noted that the wife should view any loan from the municipality as an advance from her share of the equity.
Finally, the Court noted that granting the application is not a licence for the man to stand still. After all, no one should stand still in a situation of undivided ownership. The husband should therefore actively use the coming period to realise the allocation of the home to him as soon as possible. He must also inform the wife in good time if the allocation of the home to him proves impossible.
It is therefore possible to defer the claim for division of a home. While this concerns exceptional circumstances, but is possible in some cases. Would you like advice on dividing a home? Would you like to apply for a deferment of the division of the home? Or would you like other legal advice? Please do not hesitate to contact me directly. I am happy to help you.
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