Property Settlement – Who Gets to Live in the House after Separation and for How Long?

07/09/2018

What happens to the family home at the time of separation and in the long run is in most cases, the central issue in a Family Law property matter?

For most people the matrimonial home is the most significant asset of the marriage and who gets to live in the house pending property division is often something that causes significant stress and conflict and often cannot be agreed.

Having to move out of the matrimonial home can cause financial hardship for the one who leaves and for the whole family.  What happens to the matrimonial home at the time of separation is significant to the long term outcome of the Family Law matter and will affect both parties and the children.

Both parties need somewhere to live but usually one party or the other leaves the matrimonial home.  The decisions made and the arrangements put in place at the time of separation have long term financial consequences and can affect the way a Family Law property division matter progresses and the speed at which it progresses through the Court system if the matter cannot be settled.

What can Happen?

  • Who gets to stay in the home?
  • How long do they get to stay in the home?
  • Can I visit the home?
  • Who pays the mortgage?
  • Who pays for the repairs and maintenance?
  • Who pays for the rates and utilities?
  • Will I get compensation and recognition for my efforts at final settlement?
  • When does the Court look at the value of the matrimonial home – now or later?
  • How long do they get to stay in the home?
  • What can I do to protect my occupation of the home?
  • What can I do to get the other person out – can I get the house sold?
  • Financial hardship – paying the mortgage and not getting to live in the house and also paying rent.

The first steps in a separation need to be carefully considered.  Decisions can be made which will increase the potential for a more favourable outcome at Final Hearing.

What Options Are Available

In circumstances where one party wants to occupy the house or one party wants to achieve an early sale of the house it is possible to make an application to the Federal Circuit Court of Australia or Family Court of Australia for Orders for Exclusive Occupation or an Order for the sale of the house.

Exclusive Occupation

The Family Court of Australia and the Federal Circuit Court of Australia can make Orders allowing one party to reside in the house and preventing the other party from coming to the house.  This type of Order is called an Order for Exclusive Occupation.  Watson & Watson customarily make such application, or resist such an application if made by one or other of the parties to the marriage or a de facto relationship.

Order for Sale of the House 

In circumstances where one party is occupying the house to the exclusion of the other the Court has the power to order sale of the property before Final Hearing.  The circumstances in which the Court may make such an Order include a situation where it would be futile to postpone sale of the house because the financial situation of the parties would not allow either of them to acquire the other’s interest in the house and retain it on a long term basis.

If the circumstances are that neither party will be able to financially maintain the matrimonial home and pay out the other party, it would be appropriate for parties to try and resolve the issue as to the sale of the house. It is futile to spend tens of thousands of dollars on trying to live in the home which eventually will be sold.  Notwithstanding this many parties want to reside in the home irrespective of the financial burden.

Most often there is no one considering the actual costs of remaining in the home or whether one or other party will be financially able to retain the house.  Costs include legal costs, valuation costs and emotional costs.  One needs to consider how this process is managed also having regard to your child/rens’ interest.

Unfortunately we see many cases where the children’s interests seem to be forgotten.  It is not necessarily in the interest of either party or the children to stay in the matrimonial home.

The parties only have a certain asset pool to divide.  Why continue to debate the issue and pay lawyers and accountants from the pool when rational decision making would require the sale of the matrimonial home and division of the net proceeds of sale at an appropriate time before the waste of tens of thousands of dollars.

Interim Application to Court

Watson & Watson frequently act and conduct Applications for Exclusive Occupancy of the matrimonial home and also Applications for Sale of the matrimonial home and distribution or investment of sale proceeds on an interim basis.

If you are about to separate or have separated from your spouse/partner and are unsure how to navigate the stressful task of dealing with your family home whether you are currently living in your family home, you have left your family home or are contemplating or being coerced into selling your family, please telephone Richard Watson Family Law Solicitor or Shereen Da Gloria to discuss your matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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