Who Gets the House in a Divorce?

When a relationship ends, the beginning of the separation is often marked by one partner moving out of the home. Traditionally, this often meant that the husband left while the wife remained in the family home, especially when there were children to consider. Underlying this tradition was the assumption that a woman may lack the financial resources to support herself in a separate household. It is less straightforward in modern families, as both parties are likely to be working and caring for any children. This article looks at who gets the house after a divorce in Australia.

Who gets the house in a divorce?

The first point of note is that, in Australia, a divorce proceeding is separate from court proceedings to decide parenting orders and property settlements. This means that the question “who gets the house in the divorce?” will not be answered during a divorce proceeding. A couple can separate, apply for and be granted a divorce, all without addressing the distribution of any common assets of the relationship.

Following separation, a former couple must decide how to divide their assets and assign their liabilities. In some couples, this process is simple, with each person taking the items that they purchased and each retaining responsibilities for their own credit cards and personal loans. However, when the couple own a property, the situation is usually less straightforward, particularly if there is a mortgage over the property.

Although it is challenging, the former couple should try and reach an agreement privately. If they cannot agree without help, they should consider family dispute resolution and mediation. These agreements can be formalised with Consent Orders or a Binding Financial Agreement. It is not uncommon, however, for private negotiations to become stalled because the parties cannot agree. Both parties may wish to stay in the property, or one person may wish to remain in the property while the other insists on selling the property. This is made more difficult and emotionally taxing when the property in question is also the family home of dependent children. If the parties cannot negotiate a solution between themselves, they can ask the Federal Circuit and Family Court of Australia (‘the Court’) to decide how to divide their assets, including the family home.

Who stays in the house during a court proceeding?

Unfortunately, an application through the court can take a long time and there is no simple answer to the question of who should live in the house while the court’s decision is pending. Certainly, both partners are entitled to remain in the family home until the property settlement is finalised. Neither party can change the locks or ban the other person from the property without a court order. This is the case even if only one person is registered on the title. Equally, either party can choose to leave the family home during the separation, and this will not prejudice their chance of retaining the home as part of the property settlement.

However, if one party does choose to move out, they should consider that they may not have the opportunity to return until the property settlement is complete. An attempt to return before then without the other party’s consent may be seen as intimidation or threatening behaviour. The court may even view such actions as a form of family violence and issue a Protection Order. In addition, a party leaving the home may be required to continue to make payments to support the maintenance of the property (such as mortgage payments) as well as the costs incurred in maintaining separate accommodation.  

In some circumstances, especially in cases of family violence, it is necessary for one party to seek a court order to secure sole occupation of the family home pending the outcome of a property division. A family law injunction order can grant one spouse the right to continue living in the home and require the other party to move out. Before making such an order, the court must be convinced that it is unreasonable, insensible or impractical to expect the couple to remain living together. The court will consider:

• if one spouse will be the primary caregiver of minor children and what is in the best interests of those children
• the earning capacity of each spouse, as this will affect their ability to rent or buy elsewhere
• each party’s access to alternative accommodation, and
• the conduct of both parties, such as whether there are allegations of family violence.

Are we legally separated if we remain in the home together?

Australia is in the middle of a housing affordability crisis. Some former couples are choosing to continue living together after separating because they have little choice. This provides a way to save money on additional housing and living expenses, and can even provide continuity and stability to any children involved. In addition, the parties can still count this time towards their separation period before applying for a divorce, as long as they live separately under one roof. Of course, the parties should no longer act as though they are in a relationship (such as sharing a bedroom or presenting themselves in public as a couple).

If you have recently separated from your spouse, you may be wondering who gets the house in the divorce. Please contact the experienced family law solicitors at Go To Court Lawyers for advice on divorce applications, family law injunctions and property settlements proceedings. Call 1300 636 846 today for any legal assistance.