Updated: Sep 13, 2022
Or in other words, 'Who keeps the teaspoons?'
Lawyers at court often become frustrated when, having negotiated a deal for the family home, the pensions, and the savings, they hit in impasse over the contents of the family home. It is so commonplace as to be a cliché.
One District Judge, who had a reputation for being grumpier than most, would make very clear to the layers that, if their clients could not reach agreement, he would simply order that all of the contents should be sold at public auction and, if either party wished to retain an item, they would be free to go and bid for them. Needless to say, he never actually had to carry out his threat.
So what is a fair way to divide the contents of a family home?
The same principles apply to any other family finance dispute – consider needs first and then look at sharing. If one spouse has particular needs – maybe through disability or because they will have to provide a home for children, then any division should focus upon meeting those needs first.
In most cases where there is disagreement, the parties will have similar needs and so the focus will be on sharing; but sharing what?
So again, what are the principles? Sharing would normally be applied to ‘matrimonial property’, and the contents of the family home, like the home itself, will normally be matrimonial property, though there may be some exceptions, such as in relation to family heirlooms or particular items owned before the marriage or inherited during it. But, remember that when a couple set up home, they may have surplus furnishings etc and some may be disposed of. It would be unreasonable to simply say: ‘I owned this before we got together, so it should be disregarded.’
Assuming that there are no issues about needs and no questions as to whether items are not ‘matrimonial property’, what are your options for achieving a fair division?
Here are some approaches that I have seen over the years:
‘Turn and Turn About’ Go through the inventory together - after excluding any items that you both regard as being the other’s personal property - with A having first pick; B having second and third pick; A having fourth and fifth pick, and so on. This is usually effective and takes away some of the advantage of having first pick. The toss of a coin may be the best method of deciding who is ‘A’ and who is ‘B’.
‘Dividing by Value’ Rather than seeking to equalise the number of items, you seek to equalise the value retained by each. Step one is to agree what each item is worth – decide before you start whether you are looking at second-hand value or replacement cost or something in-between – in a sense, as long as you are consistent, the basis of valuation is not important for this approach. Then go through the inventory in price order, looking to see who wants what and keeping a running tally so that, if one of you starts to fall behind on their total value, you can adjust on later items. If, at the end, one of you has a higher value overall, then they have to start to give up items to the other. This option is complicated and open to arguments over value, and probably not the best option. We have also heard complaints that the valuations have been altered part way through the process.
‘A Closed Sealed-Bid Auction’ This is probably the fail-safe approach:
You prepare your inventory as before and each, individually and privately from each other, set against each item what it is worth to you.
Each then retains one copy of their list and gives a second copy to each other (if you do not totally trust one another you may also agree to give a copy of each marked list to an independent third party).
You then go through the inventory and whoever has put the higher figure ‘buys’ that item at that price.
Once you have gone through the list, you add up the total of the prices of the items being retained by each of you and the one with the higher total gives one half of the difference to the other. That way, one of you ends up with the smaller overall value of items but with a cash sum to make up for the fact, whilst the other has a higher value but pays the lump sum. This approach has the advantage over ‘Dividing by Value’ in that it does not lead to arguments about what each item may be worth.
A final thought: Please don’t include your children in the list of household contents: whatever some parents think, they are not objects to be shared but people in their own right with their own needs, hopes and challenges.
People have not been able to ‘own’ each other in the United Kingdom since at least 1772.