It is a question that virtually all separating couples will ask at some point: if we are no longer a couple, who should live where? More particularly clients want to know if moving out of the family home will impact settlement of the property before their divorce or separation is finalised.
Should one of us move out? Should I buy a new property? What happens if we have an investment property together? Does it matter if my name is on the title? Who pays the mortgage if only one party moves out? Should we sell our property? What if we are renting? What happens to our shared possessions, such as TVs and other items of value?
Our dedicated family lawyers can answer these questions and provide a clear path through difficult and confusing times.
Property Settlement
Property settlement refers to the division of assets between married or de-facto couples after they separate. Assets available for division include real estate, cars, jewellery and monies in bank accounts. In short, anything of value might be part of a division of property, including items that might be of only sentimental value. This is often called an "asset pool".
Settlement can occur through negotiation or can be decided by a Court.
In property settlements there is no specific formula for how property will be divided. Rather, it is determined on a case-by-case basis with the goal of finding a just and equitable outcome for both parties.
The length of the marriage, parties' contributions, and parties' future needs are considered, amongst many other factors.
The process can take a long time. There can be emotional factors present that impact on the length of time it takes to reach a concluded property settlement.
It is crucial to obtain legal advice if you are separating from your partner.
The Family Home
The family home is often the most valuable asset to be divided after separation. It also tends to have the most emotional value attached to it. It might be close to the children's schools, or close to where a party works.
Some couples decide that they are best served by living in separate homes after separation. Some remain living separately under the same roof. These decisions may have an impact on how one party feels about meeting joint expenses if they no longer reside at jointly owned property. For instance, a party who moves out may need to pay rent at their new home and might struggle to also contribute to mortgage payments at their previous home.
It is therefore vital to get early legal advice once a separation has taken place.
Not all property settlements need to go to court and many are settled amicably after the parties obtain legal advice. Often parties can reach an agreement through the many alternative dispute resolution methods available, such as mediation.
Purchasing a New Property Prior to Divorce
You may also be considering purchasing a new home to start the next chapter of your life in.
A property purchased after separation might be included in the asset pool if the property is purchased prior to the formalisation of your property settlement.
If you are considering buying a home during a divorce or settlement agreement being finalised, it is critical to get legal advice to understand how the purchase might impact you.
Family Violence
If you are experiencing family violence or have been accused of causing family violence, that might have a significant impact on where you might live after separation.
Family violence has a very wide definition and can include financial and emotional abuse. Actions do not have to have a physical component to them to be considered family violence.
If you are experiencing or have been accused of family violence, it is imperative that you obtain legal advice. If the violence is serious, you may wish to contact the Police.
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.
