Viw Magazine


  • Written by Hayder Shkara

A house can be a couple’s most valuable financial asset.

It is a place where couples find security and comfort.

People often ask, when I get divorced, who gets to stay in the family home?

There is a widely held belief that when two people divorce, they are entitled to a 50% split of all property and assets.

This is not the case.

This may seem fair or unfair to you, however, the laws in Australia take into account a wide range of factors before deciding on how assets are to be divided, meaning a 50/50 split is never guaranteed.

This includes the family home.

There are two components when it comes to determining who stays in the family house –

1. Where are the children of the relationship are going to live?

2. What is the financial situation of the parties?

Where are the children going to live

Generally, neither party wishes to stop spending as much time with their children.

Judges are aware that repeated change for children can be difficult. For this reason, they will try and keep children in their regular family home if possible.  

If the children have remained in the family home during a divorce, there is a good argument that changing this arrangement will be disruptive for the children.

This often means that the other parent who moved out ends up being penalized for doing so.

This is unfortunate, as quite often they intended to leave because it was in the children’s best interests to reduce conflict in the home.

However, it might be the case that just because you have the children, It does not mean that you will be able to make the repayments for the property.

If you are unable to make the repayments for the property then a court will take a logical approach and you will not be able to retain the property.

This is when you have to now consider how the court allocates property when there is a breakdown of a relationship.

What is the financial situation of the parties?

The best family lawyers Sydney will be able to explain several things that must be studied to calculate how assets should be distributed after the breakdown of a relationship:

1. The total value of the asset pool. This includes all assets, liabilities, shares property, superannuation entitlements, as well as assets held jointly, personally, in partnership, by trusts, or companies.

2.  Whether any special contributions were made during the relationship, such as receiving a compensation payment, an inheritance, or a large gift.

3.  Whether there are children from the relationship and how this would affect the property settlement.

4.  Whether the circumstances of the relationship has affected the income earning capacity of either of the parties

5.  Each party’s age and health and the future needs that they may have.

After looking at the above points, a court will allocate a certain percentage to each one of the parties. For example, if the family home is worth $1,000,000 and there is a mortgage on the loan for $800,000, Then it would not make much sense for a mother that is not working and has to look after three children to stay in that property and maintain the mortgage repayments.

The mother will probably not be able to obtain finance for doing so, and even if she was to obtain finance, as she is not working it would be difficult for her to service the loan.   

These points will contribute to whether or not a party will be able to retain the family home or not.

If it’s the case that one parent may not be able to afford the repayments of the house, and one parent could afford the repayments, then the courts may award the house to the party that can afford the payments.

It is preferred that former partners can decide who is leaving the home without the intervention of the court.

For the person leaving, their entitlement to a share of the property during divorce proceedings will not be affected.

Obtaining family law advice from family lawyers Ipswich early will help parties to know where they stand before negotiating a settlement.


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