Going through a separation: Who Gets the House?

When a marriage or de facto relationship comes to an end, deciding who gets the family home is often a major concern.

Unfortunately, there isn’t a one-size-fits-all formula for determining who keeps the family home. Instead, the family home becomes part of the overall property pool, which includes all assets and liabilities in sole names or joint names and is divided during the property settlement process. It is important to note that this process is separate from divorce proceedings and aims to achieve a fair division of assets.

If you and your ex are able to negotiate a property settlement with the assistance of experienced family lawyers negotiating on your behalf and guiding you, and you enter into a Binding Financial Agreement or an Application for Consent Orders, this can often be the most cost-effective and straightforward approach.

If an agreement can't be reached, you will need to apply to the Federal Circuit & Family Court for Final Property Orders to divide the property asset pool. When the Court determines your entitlements as to the division of assets and liabilities, it considers several factors, including various types of contributions:

1. Assets and Liabilities: The court considers all assets and liabilities, including the current market value of the family home and any investments properties, to determine the total nett value of the property pool.

2. Contributions: The Court evaluates both financial and non-financial contributions, and direct and indirect contributions made during the relationship, as well as contributions before and after separation:

   • Initial Contributions: Assets or resources each person brought into the relationship, such as money, property, or other valuables as well as debts.

   • Financial Contributions: Income earned, property purchased during the relationship, lumps sums gifted from third parties such as family members, inheritance, windfalls and superannuation.

   • Non-Financial Contributions: Homemaking duties such as cooking and cleaning, childcare, and supporting the other spouse’s education or career progression.

   • Post-Separation Contributions: Contributions made after separation, such as maintaining the home or paying for expenses.

   • Future Needs: The future needs of each party, such as childcare responsibilities or health issues, are considered to ensure a fair division.

1. Duration of the Marriage: The length of the marriage impacts how assets are divided. Longer marriages may see a more integrated approach to asset division, while shorter marriages might handle initial contributions differently.

2. Just and Equitable: The court ensures that the property settlement is fair, taking all circumstances into account.
   

Navigating property division can be complex and very stressful, but you don’t have to do it alone. Londi Gramelis and her experienced team at First Choice Family Lawyers are dedicated to achieving positive results and supporting you through this difficult time. Contact First Choice Family Lawyers  today on (02) 9579 5555 or email us at info@firstchoicelaw.com.au for a free consultation.