I'm Separating...Should I Stay In The Family Home Or Go?

If you and your partner may have recently separated, or perhaps you are considering separation, have you considered what will happen with the family home?

Our Strategic Partner, Kristina Askew from Nolan Lawyers, answers the questions that frequently arise when a couple is separating and is not sure what will happen with the family home.

1. Do You Have To Leave The Family Home?

The short answer is no. Unless, there is a Court Order that requires you to vacate the home and restrains you from returning. In Family Law, these are referred to as 'Exclusive Occupation Orders'. Furthermore, if there is a protective order made against you, such as an Apprehended Domestic Violence Order, the conditions of the Order may mean you have no choice but to leave the home to ensure compliance.

2. Can We Both Stay Living In The Family Home?

Yes, many couples decide to remain living separated under the one roof until their property settlement is finalised. Particularly in this current economic climate, many couples cannot afford to support two separate households.

You should ask yourself the question, is it feasible to lead separate lives in the same home?

In our experience, continuing occupation of the same home after separation is only workable if you have an amicable relationship with your former partner, good (or at least average) communication and the arrangement is only in place temporarily pending the resolution of your property settlement. Some practical problems can arise in terms of running the household, for instance dividing the payment of household bills, grocery shopping, meal preparations and the laundry. It can also present some difficulties if either of you decide to re-partner or there is a lot of tension in the home making life plainly uncomfortable and unenjoyable. For some, it is an intolerable situation. Importantly, if there are issues of domestic violence in your home, it may be safer for you to leave the home on a temporary basis to protect you and/or your children.

If you decide to remain living separated under the one roof, it is important you are aware of the requirements to file for a divorce. Firstly, you must be able to prove to the Court that you have been separated for not less than 12 months. If, during that 12 month period, you and your former partner have been living together in the same home, the Court requires additional information from you to prove you have indeed been separated for the complete 12 month period. This information should be set out in an Affidavit which is basically a written statement to the Court, and includes details such as the change in your sleeping arrangements, division of finances, decrease in performing household duties together and a decline or complete stop in attending family outings together.

Please note, the above requirements for a divorce application, do not apply to your property settlement. You can seek and formalise a property settlement at any point after separation, but no later than 12 months after you divorce (unless leave is granted by the Court).

If you have children, you may consider implementing a nesting arrangement. This is where separated parents live in the family home with the children for alternating periods. During the times when one parent is not living in the home with the children, they usually rent out another unit or property to live in. This arrangement, if financially viable, provides consistency for the children and avoids disrupting the children’s routine post separation. If you are considering this option, it is important you have good communication with your former partner and a level of trust in the relationship. Otherwise, it is unlikely to work.

3. Should You Move Out?

Firstly consider, is it financially viable for either of you to move out? Is alternative accommodation available? The particular circumstances of your situation will determine the answer for you.

It is important to know that if you decide to leave the family home, you do not “relinquish” your entitlements to the property. It also does not decide who will ultimately retain the property as part of your final property settlement. To confirm, if one of you has possession and occupation of a specific asset at a point in time, this does not prevent the Court from adjusting the property interests differently and allocating that asset to the one who left the home, even if they vacated upon separation and have not lived there for several years.

What we occasionally see in practice, however, is the one who is 'sitting pretty' in the family home may have less incentive to settle and can delay the negotiations and settlement. This is particularly the case if the one who has vacated the home is still paying the household bills. Other factors may be at play, for instance the one with occupation of the home may need more time to organise their finances so they can take over the mortgage and retain the property in their sole name. Or it may be inevitable that the property must be sold and the one occupying the home is not ready to re-accommodate themselves.

4. Who Must Pay The Household Bills?

Irrespective of whether you stay or leave, if you are a registered proprietor of the property, your obligations as a property owner continue, that includes paying your rates, land tax, strata levies and other associated outgoings. Moreover, if you are a co-borrower on the home loan, then irrespective of whether you stay or leave, your obligations to the bank or mortgagee continue and the same applies with a rental agreement.

You and your spouse may decide that whoever enjoys exclusive occupation of the home will be responsible for paying the mortgage or rental payments, utilities, rates, and other household expenses. In practice, this arrangement occurs most often and in our view is the fairest and most logical one. Except in situations where the primary carer remains in the home with the children and has no (or minimal) income and due to their limited financial capacity, are unable to meet the outgoings on the property. In this situation, usually the other parent who is typically the primary breadwinner, will continue to meet the household expenses until their property settlement is finalised.

Exclusive Occupation Orders

You can make an application to the Court seeking a specific order that restrains your former partner from entering or remaining in the family home or residence. The order is made by way of an injunction and specifies who is to continue living in the home and who must go. When deciding whether to make such an order, the Court considers various factors some of which include:

• The means and needs of each of you, including whether alternative accommodation is available and your respective incomes and/or financial resources;
• The needs of any children concerned;
• Hardship to either of you or any relevant children;
• Conduct which justifies one of you from being expelled from the home.

It is a very serious matter to evict someone out of their family home, so the Court does not take these applications lightly. Simply because it is inconvenient to share occupation of the home with your former partner would not be sufficient to justify such an order. Ultimately, the Court will examine the entire circumstances of your situation and decide on the facts of your case, whether such an order is justified.

Like To Learn More?

If you want further information or require family law advice, please contact Nolan Lawyers on 02 8014 5885 or email them at: info@nolanlawyers.com.au to arrange a free 30 minute (no obligation) consultation.