Who Gets The House In A Divorce In Australia?

by | Apr 5, 2023

When a couple decides to separate, the issue of the marital home often becomes a key topic of discussion. In our family law practice, we frequently come across the following questions:

Does the Court have a specific formula for determining who gets to keep the marital home?
Is there any party that has a preferential right to the marital home?
Are we legally obligated to sell the marital home and divide the proceeds?
Can the registered owner of the marital home retain it?
I have been living in the marital home while my ex-partner has moved out. Do I have the right to keep it?

First and foremost, the Court will apply the relevant law to determine the division of property in a fair manner. However, there isn’t a rigid formula that is universally followed. No party has an automatic preferential right to the marital home. The Court will consider the unique circumstances of each case to reach a just decision.

If you wish to retain the marital home, you should include this as part of your application. Your family lawyer will assess the feasibility of your claim and assist you in preparing an application to be considered by the Court.

Apart from the financial aspects related to keeping the marital home, the Court will also take into account your conduct following the separation. Factors such as who moved out, how long ago, where the children reside, and with whom they live will be considered. Each case is evaluated on its individual merits.

The fact that only one party is the registered owner of the marital home does not necessarily determine who will be allowed to keep it.

If the separating couple cannot reach an agreement regarding the future of the marital home, the Court may decide that it should be sold and the proceeds divided according to the property settlement.

If you believe you have a right to the marital home and are concerned that your ex-partner may sell it or transfer the title without your consent, it is essential to seek immediate legal advice. It may be possible to obtain a court order to prevent the sale of the marital home.

We understand that separation can be a challenging and uncertain time, particularly when children are involved and there is a strong emotional connection to the marital home. Even if your separation is amicable and there are no urgent concerns, we strongly recommend engaging a family lawyer who can provide guidance on your rights and obligations, as well as support you throughout the process. They can also assist with practical matters, such as accurately completing documents and gathering necessary evidence.