Who Gets To Stay in the House During Separation in Australia?


There are many difficult decisions to be made when it comes to separation or divorce and the family home in Australia. Among them, the crucial question arises: ‘Who gets to stay in the house?’

It’s a query that often perplexes couples undergoing this process, and arriving at a satisfactory answer can prove elusive.

In Australia, there is no straightforward legal response to this matter, making it all the more crucial for couples to understand their options and seek guidance through this emotional and legal maze.


Children of the Relationship


Firstly, if there are children of the relationship, then the best interests of the children must be considered.

If it is clear that the children will remain in the care of one parent more often than the other, then it may be best for the main carer to remain in the marital home upon separation.

However, if it is clear that one party to the relationship is more likely to retain the property in the overall distribution of the asset pool, then that person may be the obvious choice as to who remains in the marital home.


Ensuring a Fair Departure: Protecting Your Rights & Assets


If you are the one leaving then you should take your share of household items as well copies of your records, including tax returns, superannuation statements, bank records, passport, visa documents, and any other important documents.

It is often the case that once you have left, it becomes very difficult to obtain those documents from the other party.

Although there is no law covering whether or not you should return to the marital home ‘uninvited’, in the interests of preventing unnecessary conflict or disputes it is a good idea to let the remaining party have ‘exclusive occupation’ of the marital home.

It also prevents any accusations of you removing items from the home that you may not have been entitled to.


What About Mortgage Repayments?


If you are the one leaving and you are named on the loan documents, your obligation to pay the mortgage remains.

Quite often, the party who has left has the added responsibility of rent payments and declines to make any further contributions to the mortgage.

If the mortgage falls into default, the bank may decide to foreclose the loan and sell the property at a possibly undervalued price.

Often you will hear that you should not leave the marital home upon separation because in doing so, you will miss out on your entitlements. This is not the case.

Just because an item is in the possession of one or the other of the parties does not mean that it is not accounted for in the final determination of the distribution of the asset pool (this includes the marital home).

The Court is not interested in which party has left the marital home when deciding who gets what in property settlement, after considering the values, various contributions, and other factors, the Court is ultimately interested in whether or not the overall property settlement is deemed fair and equitable.


Contact Us


For more information about who gets to stay in the house during separation in Australia, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.

More about our family law services here.

Related Blog – Is Separation Just a 50/50 Split?

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