What happens to our Family Home when we separate?
This is a very common question that I am asked by my single-mum clients going through a financial separation and faced with the prospects of an uncertain and anxiety-riddled future.
YOU CAN KEEP IT – AT LEAST FOR NOW!
Thankfully, the Australian Family Law Act recognises the importance of ensuring stability for children and their primary carers and, quite often, the answer to the question is:
“You can keep it – at least for now!”
In addition, I am also usually able to advise my single-mum clients, where they are the primary carers for the children, and reliant on their partner for financial support, that:
- No, you are not required to magically start producing income to make all the payments for the mortgage and bills, on top of all of your already considerable responsibilities in raising pre-school children;
- No, you won’t be kicked out of the home, even if the home is in your partner’s name and even if your partner threatens to change the locks or stop making the mortgage payments, bills or other child-related expenses (this could actually be a form of unlawful financial control and family violence);
- Yes, if you are a victim of family violence or you or your children feel threatened or unsafe because of your partner’s threats or actions, you most certainly should go to the police and make a statement for your protection and that of your children, and yes, the police can and most likely will remove your partner from the home by an Intervention Order;
- No, you don’t need to confront your partner in the Intervention Order matters, and where the police bring the application on your behalf, there is no cost to you;
- Even if the police don’t think you have a strong enough case, speak to a good Family Law lawyer to help you negotiate a temporary deal to keep your family home (either by agreement or by Court Orders); and
- Finally, even if you have to leave the Family Home, that does not mean that you can’t return to live there! The Family Court has the power to make Orders to force your partner to give you and your children sole
I must say, however, that where the financial provider in the relationship also (genuinely) cannot afford to make the mortgage payments, you’re likely to qualify for a hardship relief on your mortgage, to give you time to get the house ready for sale and to locate suitable rental for yourself and the children.
Where you are also working and contributing financially, then you should continue to work as you were before separation and continue making the same payments as you were. If there is a shortfall, your partner, in most cases, is obliged to make those payments. This is a concept known as ‘Spousal Maintenance’ in the family law.
Spousal Maintenance payments are additional payments that you may be entitled to, above Child Support payments and are intended exactly for circumstances like this – to help keep a roof over your head and your children’s heads.
What happens to our family home when we separate?
IS IT WORTH KEEPING LONG-TERM?
Now that we’ve addressed what happens to your home in the short-term, whether you are able to keep the family home long-term, however, is another question altogether.
The Courts, when considering a property settlement application, need to assess each relationship on the basis of the parties’ respective contributions (financial, non-financial, homemaker and parenting), the size of the parties’ total superannuation-inclusive assets, the parties’ future needs and come to Orders which are fair (as decided by the particular Judge) in all the circumstances.
Sometimes, even if you are working, have approved finance, and combined with your anticipated property settlement, you are able to afford to keep the family home, it still isn’t worth keeping.
Sometimes, it’s actually just better to downsize to a new home that is more manageable so that you’re not strung up on worrying about making your new mortgage payments all on your own.
Sometimes, a fresh new start is the perfect way to celebrate your fresh new beginning because, ultimately, home really is where the heart is.
GETTING GOOD ADVICE EARLY – THE BEST THING YOU CAN DO
“What happens to our family home when we separate” is a very important question, particularly for single mums and mainly for the sake of your children.
Thankfully, in most circumstances, you don’t have to worry too much about keeping your home in the short-term. The best thing you can do is to get some good legal advice even before you separate, just so you know where you stand and how best to protect yourself and your children, in the event that separation is unavoidable.
There are lots of good Family Law practitioners who understand your worries – ring around and find one to give you good legal advice for your particular circumstances. Most of the good ones give you a free initial consultation, so you can get a couple of opinions and quotes too.
Some of the great ones even offer fixed-prices and defer their fees until settlement!
