When to Move out of the Family Home

The decision to move out of the family home when separating from your partner is a significant one. Often client’s come to us for Family Law advice after the have already left the family home. The reasons for a party leaving the family home range from:

• To keep the peace
• For the benefit of the children
• For mental health reasons
• To create distance from a drug/alcohol situation
• Fear for their own safety and domestic violence

Each case is different and needs to be assessed on its own merits. Sometimes the right choice would be to leave if you can, sometimes the decision to leave can be very disadvantageous. In some circumstances there may be grounds sufficient to have the other party removed from the family home.

Moving out of the family home may not directly affect your entitlements in a Family Law property settlement, the decision can have significant implications. Whether the property owned in joint names or it is owned solely by your former spouse, the property will be included in the asset pool for division. This will remain the case regardless of whether you chose to leave the family home prior to a settlement being agreed.

If the decision is made to move out of the family home the exiting party will need to arrange alternative rental accommodation. This can often provide difficulties as the length of time with which the rental accommodation will be required is unknown. Often the party exiting the family home will require a property settlement to be achieved before they can afford to purchase a property in which to live.

If the matter proceeds by way of negotiation, the length of time which it will take to resolve a property settlement depends on how reasonable, sensible and willing to negotiate, the parties are. If a negotiated settlement cannot be reached and the matter is brought before the courts the final resolution can be years away.

During this time the party who has left the family home may be required to pay the additional expense of their rental accommodation. If there are children of the relationship and the party who has left the family home wishes to have them overnight, this rental accommodation would need to appropriately sized to house the children. This can make the rental accommodation a significant weekly expense which the remaining party will not incur.

Apart from the financial reasons, leaving the family home may cause several practical issues. Once a party has left the family home it can often become difficult to gain access to the property again. The party who remains in the family home may decide to change the locks to the property and not provide you with a copy of the key preventing any access. If any furniture, documents or personal belongings are left behind, it can be become difficult to recover them.
From a negotiation perspective, the party who remains in the family home is of seen to be in a advantageous position. If both parties are attempting to negotiate a property settlement, the party who remains in the family home can often be less eager to negotiate as they may feel comfortable in their current position.

In summary there are many factors at play when it comes to making the decision of whether to leave the family home or not. Of course, if there is a risk to your children or you own safety the best course of action would be to leave the family home and contact the Domestic Violence Line on 1800 65 64 63 or your local police. In certain circumstances an Apprehended Domestic Violence Order (ADVO) can be granted and an exclusion order sought to prevent the violent party from remaining in the property.

The best course of action in all scenarios is to approach you family lawyer early on in the separation process and discuss your situation and your concerns with them. They will then be able to advise you of the best course of action in your scenario so if you decide to leave you can do so safely and without prejudicing your Family Law property settlement.

Should you wish to discuss your Family Law matter with one of our experienced team, please contact us 8525 2700 or click here to request an appointment.

Article written by Adrian Stock
Photo by Sammy Williams on Unsplash