While we have already covered the topic of “Who Gets What in a Property Settlement?” – this article looks more at the practical aspects of what happens to your property before, during and after a divorce (or separation) from a family law perspective.

While there are no hard and fast rules as to who retains which assets in either the interim or on a final basis, there are some things every separating couple must consider that will influence who retains what on a final basis.

Are there children of the relationship?

Putting aside the legal aspects, if the separating couple have children, this can often put an emotive aspect into any of the property retention considerations – particularly on a short term basis.

Divorce or separation is a hugely turbulent period that will not only affect your life, but that of your children.

In a time of such turbulence, parents often want to – and should consider whether it is appropriate and financially possible – for one parent to remain in the family home with the children in the interim period between when separation occurs and a final property settlement occurs – which can take anywhere from several months to several years (in more complex or high conflict cases) to finalise.

By and large most separating couples prefer for the primary carer to stay within the family home in the short to mid-term to guarantee as much continuity for the children as possible. This continuity means that children will not face school disruption nor lose out on social circles and other critical elements.

Both parties should dig deep into their humanity and try to reach a working solution to maintain equilibrium – at least for the short to mid-term – but this may not always be possible.

Who is able to pay for the asset in the short and long term?

While both parties may strive to ensure continued access to the family home for the children, mortgage commitments, increased outgoings for rental property and the like, may force the hand to push for an early division of assets.

The reality for many primary caregivers is that they are not the primary income earner and therefore may be concerned about how they might be able to make financial ends meet while maintaining continuity for the children in the family home.

On an interim basis, alternatives such as spousal maintenance payments or orders to ensure one party pays for particular outgoings on the family home for a short period (even though they are not living there), may be appropriate and can be agreed to by the consent of both parties.

Where communication between the parties fails and there are financial strains from not immediately dividing the property assets, we strongly advise getting good and early legal advice as there are legal safeguards (such as spousal maintenance) to try and reach the most balanced outcome for both parties. These legal safeguards can protect one party from possibly being forced out of the home and naturally where children are involved, this is particularly important.

However, it is uncommon for spousal maintenance orders (or orders for one party to pay the outgoings on the property where they are not living) to continue for a long period of time and/or on a final basis and as such, who retains the property on a final basis often comes down to who can afford to retain the house in the long term – that is, make mortgage payments, pay rates, insurance, etc – based on their income and/or capacity to meet these outgoings.  This will often result in one party buying the other party out of their share of the property on a final basis.

Justin Hine

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