After separation, it often becomes difficult and strained for a couple to live under one roof. A dilemma may arise when it is time for one party to leave the home. The decision as to which party remains in the family home is not a legal issue but a practical one. Whether a party remains in, or leaves, the family home does not affect their entitlements in an eventual property settlement.
The first consideration must be what arrangements will be in the best interests of the children (if any). If it is clear that the children will live primarily with one party, then to avoid disruption to the children's routine, it is best if the children and their main carer remain in the family home.
If there are no children, then the parties should consider who is most likely to retain the property in an overall settlement, and who can best maintain that property, both financially and otherwise.
Household Items
The party leaving the family home can take their share of the household items. They should also take all of their financial records, such as tax returns, superannuation statements and bank records. These documents will be useful at a later stage when negotiating a property settlement. Remember that financial records may be difficult to obtain once one party leaves the family home.
"Exclusive Occupation" of the Family Home
Once a party leaves the family home, then that party should not re-enter the home uninvited. In other words, the party remaining in the family home should have what is called "exclusive occupation" of the home.
Again, this is not a legal rule – however it is a good practice in the interests of preventing unnecessary disputes. For example, it reduces the possibility of the party who has left the home being accused of removing items from the home after they have moved out. It also means that the party remaining in the home is less likely to attempt to change the locks.
Financial Outgoings
The party remaining in the family home (if they have an income) is likely to be responsible for the following types of expenses, without contribution from the other party:
- rent (if applicable);
- utilities;
- groceries and household supplies; or
- general household maintenance.
If the party leaving the family home is one of the registered proprietors of the property then they will generally have to meet their commitments as a property owner, namely contributing to outgoings such as shire rates and land tax.
If a party's name is on the mortgage, then they are likely to continue to be responsible for contributing to the mortgage instalments, regardless of whether they are living at the property or not.
Overall Property Settlement
For the purposes of an overall property settlement, it is irrelevant whether a party has remained in the family home or moved out.
Ultimately, the overall property settlement must be fair and equitable. Possession of particular items of property at a point in time will not stop the Court from adjusting property interests differently and allocating that item to the other party.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
