Who Gets The House In A Divorce?

Divorce can be an incredibly challenging and emotional process. One of the most significant concerns for many couples is the division of property, particularly the family home. So, who gets the house in a divorce?

Property settlement

It is important to note that assets are not necessarily divided between parties following a divorce. A property settlement is required to divide all assets and other property following separation. Whether it is the breakdown of a marriage or de facto relationship, all financial ties between the parties must be finalised following separation.

The Family Law Act 1975 (“the Act”) provides a framework for property settlement. The Act aims to achieve a fair and equitable distribution of property.

Factors Considered in Property Settlement

After the value of the property pool has been determined, including the value of the family home, the court will consider several factors when deciding how to divide the parties’ property, including:

1. Contributions of the Parties

The court assesses the financial and non-financial contributions made by each party during the relationship. Some examples of financial contributions include: income, inheritances, gifts and assets owned by each party at the commencement of the relationship. Some examples of non-financial contributions include homemaking duties and care of the children.

2. Future Needs

The court will also consider any future needs factors of each party, including the age, health, income-earning capacity and any childcare responsibilities. This assessment ensures that the division of property takes into account the ongoing needs and circumstances of both parties.

3. Financial Resources

The court will consider the financial resources available to each party, including a beneficiary’s interest in a trust, rental income, a future pension entitlement etc.

4. Length of the Relationship

The duration of the relationship can influence the division of property.

Options for Dividing the Family Home

After a final assessment is made as to each party’s entitlement to the property pool, usually expressed as a percentage, there are several ways the family home can be dealt with:

1. Selling the Property

One common option is to sell the family home and for the proceeds of sale to be between the parties.

2. Transferring Ownership

In some cases, one party will transfer their interest in the property to the other party. This option may be suitable if one party wishes to remain in the home, particularly if there are children involved.

Reaching an Agreement

It is often in the best interests of both parties to reach an agreement on the division of property without going to court. Mediation and negotiation can be effective ways to resolve disputes and achieve a mutually acceptable outcome. Solari and Stock also offer the Collaborative approach to our clients and have a team of Collaboratively trained Family Solicitors that would be happy to discuss this approach with you to decide the best course of action for your matter.

Seeking Legal Advice

Divorce and property settlement can be complex, and it is essential to seek legal advice to understand your rights and options.  It is influenced by various factors, including a party’s contributions, future needs and financial resources. Understanding these factors and seeking legal advice can help ensure a fair and equitable outcome.

Solari and Stock’s team of experienced Family Lawyers can provide guidance on the legal principles that apply to your situation and help you navigate the process.  Contact us today on 8525 2700 or click here to request an appointment with one of our Family Law Team today.

Article by Kate Allenby
Photo by Natalia Malaia on Unsplash