After a de facto or married couple has decided to separate, they may begin the process of drafting a financial agreement to handle allocating the assets in the relationship. But, what about the house? This can be a tricky area since a house isn’t just a major asset, it’s imbued with all the precious memories and meaning that makes a house a home.
There are different options available, depending on your circumstances. You could decide to sell the property, clear any debts including your mortgage and add whatever profits are made from the sale to the pool of assets to be divided.
But, what if you don’t want to sell? What are you and your partner’s legal rights with respect to accessing the home?
Neither party can be forced to leave the home without a court order, regardless of who technically owns the house. Family law operates according to different principles than commercial law, and so which party is legally entitled to stay in the home is generally not dependent on whose name the title of the house is in.
If you and your former spouse cannot come to an agreement, the family court will step in and decide on your behalf using a four-step process it uses to decide all matters of property division.
In most cases, the ideal solution is for the parties to come to an agreement amicably on what to do with the home. If it’s decided that one party will stay, while the other leaves, which path each spouse takes is influenced by a few factors.
What is your financial situation?
As we all know, maintaining a house comes with a lot of financial burdens. Even if the mortgage has been paid off, there are the utilities, council rates, home insurance and the cost of maintenance and repairs that may become necessary. Living costs both in both the Sunshine Coast and Brisbane City regions are rising, which is an important consideration.
If it’s agreed that you will become the sole occupant of the house after separation, you’ll be entirely responsible for all associated expenses. Transitioning from a two-income household to a single income dramatically changes your financial position, and you will need to consider if you’re able to shoulder those costs.
These expenses can be alleviated by including provisions for spousal maintenance in a financial agreement.
If one partner is assuming primary care of the children, it may be appropriate for that spouse to remain in the home in the interests of maintaining a sense of consistency for the children, especially if they are of school age. Access to the same school, friends and extracurricular activities is important, particularly during a stressful time like divorce.
As with spousal maintenance, a financial agreement or child support agreement can also account for the expenses incurred as the primary child carer through child support payments.
In property settlements, it’s not always a clear matter how assets will be divided. If parties are unable to agree the court makes its determinations based on what it considers to be just and equitable for both parties, not on who owns what. This means that decisions may not go the way you expect.
Multiple factors are involved in dealing with significant assets like a house, so if you are concerned about retaining your stake in them, you should seek legal advice immediately
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