Property Settlements

“I Want To Leave My Marriage. What Now?”

After deciding to separate from your partner a number of immediate issues will need to be considered, writes the TGB Family law team.

After deciding to separate from your partner a number of immediate issues will need to be considered.


It is rare for separation to occur suddenly. Usually, there has been trouble brewing in the relationship for a while (be it a loss of communication, lack of intimacy or regular heated arguments) which leads to the marriage breaking down permanently.

Therefore, in most circumstances, people have time to consider their options and plan how to proceed with a separation.

Obviously, there is no easy way to dismantle the life that you have built with another person.

The following are some practical considerations for people considering leaving a marriage or long term relationship.

1. How are the arrangements for children determined?

It is usually the case that the children will live with the parent who has been their primary carer and spend time with the other parent.

Alternatively, a shared care arrangement can be implemented.

In the first instance the arrangements that are put into place are determined by whatever is decided by the parties, however, if you and your spouse are unable to reach an agreement you should seek legal advice as soon as possible.

In the event that the children are being withheld from you altogether you should seek urgent legal advice.

2.How do we decide who keeps the matrimonial home or if the property is to be sold?

If you wish to retain the property on a long term basis, you should seek legal advice before vacating the property (even if you intend to return after a short while) as this may give rise to your spouse being in a stronger position to retain the property if they so wish.  This does not mean that you will lose your entitlement, it simply means that you spouse may ultimately be able to retain the property and pay you out for your interest in the same, rather than vice versa.

Put simply, if you both wish to retain the property, who gets first preference may depend upon who has the occupation of the home at the time.

If neither of you want to retain the home or you are not in a financial position to do so, the property should be placed on the market for sale on such terms as agreed between you and your spouse.

3.Can I return to collect my belongings after vacating the home?

If your relationship with your spouse is particularly hostile, this may be difficult. If the family home is in your spouse’s sole name, they might even try and prevent you from entering the home again at all.

If you have made the decision to permanently leave the matrimonial home a better option may be to firstly secure alterative accommodation and then take a reasonable portion of the matrimonial furniture and goods with you. Don’t automatically assume that you will be granted access back into the home.

If you have already left and you need to return to collect your belongings it might be wise to arrange for a police officer to attend with you.

Ideally, you should discuss your options with your lawyer and make sure you get the right advice well in advance of any decisions being made.

4.How can I get my spouse to leave the home?

It is common for parties to separate under the same roof; however, this is not usually tenable on a long term basis.  It may be the case that you don’t have anywhere else to go and can’t afford to rent an alternative property.  Even though the living arrangements may seem unbearable, if both you and your spouse jointly the property, it may be difficult to get them to leave.

Ultimately, the only way that you can force your spouse out of the house (if they are refusing to budge) is to bring an application for sole use and occupancy before the Federal Circuit Court.

This is a costly exercise and you would need to have good reasons for bringing such an application.

A lawyer will be able to advise you as to the merits of proceeding with such an application and provide assistance.

5.How can I protect my interest in the matrimonial home if my name is not on the title?

You can register your interest in the property by lodging a caveat with the Lands Title Office.

The caveat will effectively put a freeze on your spouse’s ability to deal with property in any way.   For example, your spouse will not be able to sell or mortgage the property until the caveat has been removed.

You should see a lawyer as soon as possible after separation occurs to arrange the lodging of the caveat.

Tindall Gask Bentley is South Australia’s largest family and divorce law firm, and also has offices in Perth and Darwin. To make an appointment with a family law expert contact your nearest TGB office or register online here.