I’m Separating, Can I Keep the Former Matrimonial Home?

The marital home is generally one of the main topics under discussion when a couple decides to separate. 

These are some of the questions that we encounter regularly in our family law practice:

  • Does the Court follow a set formula for working out who keeps the marital home?
  • Does any party have a preferential right to the marital home? 
  • Are we required by law to sell the marital home and share the proceeds? 
  • Is the registered owner of the marital home allowed to keep it?
  • I’ve been living in the marital home but my ex-partner has moved out, so do I get to keep it?

Firstly, the Court will follow the relevant law, but not a specific formula as such, for a property settlement to determine who gets what.  Neither party has a preferential right to the marital home. The Court will determine each case fairly according to the unique circumstances of the situation.

If you wish to keep your former marital home, that should form part of your application. Your family lawyer will advise as to whether such a claim is feasible, and if so, help you prepare an application for consideration by the Court.

Aside from the financial aspects relating to the retention of the marital home, the Court will also need to consider how you conducted yourself after the separation. For example, did one of you move out, how long ago, where do the children live, and with who. Each case is taken on its merits.

Where one party is the only registered proprietor of the marital home, that is not necessarily relevant as to who may retain it.

If the separating couple cannot agree on the future of the marital home, the Court may determine that it should be sold and the proceeds allocated in terms of the property settlement.

If you think you have a right to the marital home and are concerned in any way that your ex-partner could sell it, or transfer the title, without your consent, you should seek legal advice urgently.  It may be possible to get a court order to prevent the sale of the marital home.

We understand that separation can be a time of significant upheaval and uncertainty, and this is especially true when children are involved and there is a strong connection to the marital home.  Even if there is no urgency or concerns and your separation is amicable, we strongly recommend that you engage a family lawyer to advise you on your rights and obligations and support you through the process.  They can also help with practical but crucial aspects of separation such as completing documents correctly and setting out evidence.

Please note that this article is general in nature and does constitute legal advice. 

If you would like advice with regards to your prospects of retaining your marital home or any other aspect of family law, please get in touch at www.westfamilylawyers.com.au or give us a call on 08 9380 9111.

West Family Lawyers seeks fair and practical outcomes for its clients; you can find out more about our services or book an obligation-free consultation through our website or on the phone.

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