When couples separate, we are often asked whether leaving the family home will affect an eventual property settlement. After deciding to end a relationship, it often becomes hard to live under the same roof together and relationships can become strained, especially when there are children involved. A dilemma often arises when it’s time for one person to leave – who should leave?

The first consideration is the children. Parties need to consider what is in the best interests of the children. If it is clear that the children will live primarily with one party, then to avoid disruption to the children’s routine it may be best if the children and their main carer remain in the family home.

The home will become part of any property settlement and neither party should be disadvantaged. Regardless of whether there are children, parties should consider who is most likely to retain the property in an overall settlement, and who can best maintain that property both financially and otherwise.

When one person leaves the family home, they are entitled to take their fair share of the household goods. They should also take with them all their financial records, such as tax returns, superannuation statements and bank records. This will help with a property settlement as the financial records are often hard to obtain once one person leaves the home.

It is important to remember that if you leave the family home, it does not mean you will lose or forfeit your entitlement to a fair and equitable share of the property.

In relation to mortgage payments you should seek financial advice as to your liability under any mortgage. Depending on the income, financial resources and reasonable expenses of the parties it may be important to establish whether ongoing contributions should be made to the expenses of the home such as mortgage payments, council rates and household bills. It is also important to obtain some legal advice about these issues in light of any child support that may be payable.

Adelaide Family Law specialises in defacto and marriage separations and all aspects of Family Law. Make an appointment with any of our experienced Family Lawyers on (08) 8113 3111 for a low fixed fee general advice session regarding your situation.

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