Home > Blog

Divorce and Real Estate: What Happens to the Family Home?

Divorce is a life-altering event that brings emotional and financial upheaval. One of the most pressing concerns during this time is the division of assets, particularly real estate. Let’s dig into the intricacies of divorce and real estate to gain a deeper understanding. 

Understanding Property Division Laws

According to the Family Law Act 1975 in Australia, property division encompasses all forms of assets and liabilities, including houses, superannuation, and other financial resources. The law assesses each party's financial and non-financial contributions and their current and future needs to ensure a fair property division.

Consent Orders and Property Division

A consent order is a legal document that confirms the agreement between both parties regarding the division of assets, including real estate. It's a cost-effective way to formalise your property settlement without going to court, provided both parties agree.

Who Gets the House?

The family home is often the most significant asset shared between couples and, understandably, can be the most emotionally charged part of the property settlement. The division of the house depends on various factors, such as each party's contributions—both financial and non-financial—to the property and the marriage. The court also considers the best interests of any dependents, like children, who may be better off staying in the family home for stability. Additionally, each spouse's current and future financial situations are considered, including their ability to maintain the property or secure alternative housing. It's important to note that the division isn't always a straightforward 50-50 split. Instead, the court aims for a just and equitable division based on your specific circumstances, which could also be formalised through a consent order or Binding Financial Agreement.

Binding Financial Agreements

Once you've negotiated a property settlement, you can formalise it through a Binding Financial Agreement (BFA) or a consent order. Both legal documents outline how marital property and financial resources will be divided. They're enforceable by law, meaning you'll need to go to court if one party doesn't comply.

Frequently Asked Questions About Property Settlement

How is the house split in a divorce?

The division of the family home in a divorce is a complex process that depends on various factors. These include each party's financial and non-financial contributions, the needs of any dependents, and the current and future financial situations of each spouse. The court aims for a just and equitable division, which may not necessarily mean a 50-50 split. A consent order or Binding Financial Agreement can formalise this division.

Who gets to stay in the house during a divorce?

Deciding who stays in the family home during a divorce can be emotionally charged. This decision often depends on various factors such as custody of children, financial contributions, and sometimes, even safety concerns. Temporary arrangements can be made, and sometimes, a court order may be necessary to decide who gets to stay in the house.

Do I have to pay half the mortgage if I move out?

If you decide to move out of the family home, the question of continuing to pay the mortgage becomes pertinent. Both parties are legally responsible for the mortgage until a formal agreement or court order states otherwise. Failing to pay could affect both parties' credit scores and could be considered when dividing assets.

The Importance of Mediation

Mediation is a structured process that helps separated couples agree on property division. It offers a neutral ground where both parties can openly discuss their concerns and negotiate terms without the adversarial atmosphere of a courtroom. Mediation is generally faster and less expensive than going to court, making it a cost-effective solution for many couples. Additionally, the process is confidential, allowing for more open and honest communication. One of the most significant benefits is that it gives both parties more control over the outcome than a court decision, which may not satisfy either party fully.

Seek Legal Advice

Divorce and real estate are complex subjects that intertwine in ways that can significantly impact your financial future. While the law provides some guidance, the variables are many, and each case is unique. Therefore, seeking legal advice to navigate this challenging terrain is crucial.