The answer, however, very much depends on the circumstances of each case.
Who gets to live in the family home until we finalise our property settlement?
Firstly, unless there is a current Intervention Order preventing one party from being in the vicinity of the home, both parties are usually allowed to remain living in the home until the parties finalise their property settlement. This however, may not be viable if the relationship is very toxic. Once one party moves out, there is usually little stopping that party from changing the locks and staying at the home.
What happens if I move out of the family home?
If living at the family home is no longer viable, you may consider moving out of the family home. However, there are things that you should consider before doing so. For example, if both parties are vying to keep the property, then the person who stayed in the property after separation may have a higher chance of keeping it than they otherwise would have had they left. If the property needs to be sold as part of the property settlement, and the person staying in the property is uncooperative with the process, then the process to remove that person is usually quite long and arduous. On the parenting arrangement front, if you are moving out with the children, you should consider whether the new accommodation is suitable for the children.
Who gets to keep the family home?
For a party to be able to keep the family home, they usually need to have the financial capacity to discharge any existing mortgage and pay out the other party. If neither party wants to or is able to keep the family home, then it would need to be sold and the proceeds divided.
If both parties want to keep the family home, then various factors are usually considered when determining who should retain it. For example, can you provide evidence to show that you have the financial capacity to keep the home and to service any mortgage into the future? Who has primary care of the children? Have the children grown up in the home? What is least disruptive to the children? As with all orders that it makes about property and finances, the court must consider these general list of factors under the Family Law Act.
Get expert family law advice first
How the family home is dealt with can very much affect your property settlement and so it is prudent to seek legal advice before taking further steps. Our expert family lawyers in Ringwood and Mount Waverley are experienced in dealing with all types of property matters and can navigate you through all the nuances of your case. Please contact on 0421 397 316 or at jlok@oikosfamilylaw.com.au for an obligation free chat.
