It depends…
What To Know
- In Australian divorce and separation there is no automatic right to the family home, even if your name is on the title.
- The house forms part of the overall property pool.
What Determines Who Gets What?
- the contributions of each party
- whether there are children
- what is considered fair and reasonable in all the circumstances.
How Is The House Divided?
Whether there are children will have an impact on what will happen to the house after separation and also the financial capacity of the separated parties.
The house may be:
- SOLD: The house may be sold with the proceeds being divided between the former couple.
- HOUSE TRANSFERRED: The house may be transferred to one of the parties. In some circumstances, the other party may keep the investment property to live in and the property division be calculated accordingly.
- HOUSE KEPT: One party may keep the home, buying out the other with their share of the property pool. This may happen when there are children to keep stability for them in their family home. The mortgage is refinanced and the former partner removed.
Who Decides How The Property Is Divided?
If you both agree?
Whether this is the end of a marriage or of a de facto relationship, if you both agree about what will happen to your home and how the property pool will be divided, you do not have to go to Court.
Separated couples can agree to consent orders which set out their arrangements to finalise the division of their property.
This can save both time and the cost of going to court.
We have found that couples find this much less stressful and they can move on with their lives.
If you cannot agree?
There may be situations where a separated couple are not able to agree.
If this is the case, the Court will make a determination about your circumstances and decide what happens to the property pool.
The Court will take into account the contributions of the parties. These are both financial and non-financial.
The care of children, the maintenance of the former matrimonial home, the payment of mortgages or upkeep, all, are taken into account.
Additionally, the Court will look at what specific needs the parties may have. If the children are staying with one partner, their needs will be considered. Also, if one parent has been the primary carer of the children and needs to retrain or refresh skills, this will have an impact on that parent’s needs.
The overriding principle is that the decision must be “just and equitable”. It has to be fair.
Key Messages
- The house is part of the property pool
- There is no automatic ownership of the house
- The division of the property pool can be finalised by CONSENT ORDERS or by a JUDICIAL DECISION at COURT
Our Role
- We help you work out what makes up your property pool
- We look at your contributions
- We help you look to the future and what you will need
- We consider how we can help you and your children move forward
We have helped our clients finalise CONSENT ORDERS, assisted at MEDIATIONS and when necessary, we have represented them to final hearings at COURT.
Initially, we write to the other side and attempt to settle matters amicably to save time and the money of litigation.
Prompt correspondence can help parties to see the big picture and move on with their lives.
If you are trying to work out how to settle your separation, please contact us so we can advise you the best way forward.
You can ring us on 92611785 or Email Us
This article is for information purposes only and should not be relied on for legal advice.
