“Should I Stay in the Family Home?”

Family Lawyer Charissa Duffy outlines some of the important factors to consider when deciding whether to leave the family home following separation.

Instinctively you may wish to move out immediately following separation in order to have your own space, or alternatively you may wish that your ex-partner would move.

You want to move out

If you want to leave the family home stop and think about what your overall objectives are before you make a snap decision to get out because there is often a financial advantage in staying in the family home.

The following are some key issues to think about:

What are the emotional consequences for staying in the home versus moving out?

If you stayed in the family home would you be staying in an unhappy/unhealthy environment?  Would your mental health suffer?  Would the tensions associated with you remaining in the home spill over and impact on the well-being of any children who live with you?  Will moving out limit the time that you spend with your children in the future?  Would it be better for you to stay in the home with the children and have your ex move out?

Do you want to keep the property in the settlement?  Whoever stays in the family home has an advantage (often due to occupation) in being able to keep the property as part of the settlement.  Do you want to remain in the home so you can prevent the other party from running down the value of the home in order to buy out your interest in the property at a reduced value?

 Can you afford the outgoings for the property on your own (mortgage repayments, rates, utilities)?

If you stay in the family home the expectation is generally that you will meet all outgoings yourself.  This is because the other party will (usually) have their own living expenses to meet e.g. rent.

Can you afford to move out?

Will you be financially worse off if you move out and have to pay rent?  If you moved into alternative accommodation can you afford accommodation appropriate for yourself and your children? If you cannot afford to rent, there may be family members you can live with in the short term to save money until you can re-establish yourself.  If you do not have somewhere to stay and cannot afford to rent then the best option for you may be to stay in the family home – seek financial advice so that you can make sound decisions for your financial future.

Will the house need to be sold? 

If the house is to be sold you might want to stay to make sure it is well presented and maintenance is attended to so that you can make the property available to agents for inspections.  It is in your interest to have control over the maintenance of the property so that you have the best chance of obtaining a high sale price.

 Your mail.  

If you move out make sure you redirect your mail so that your ex does not have access to it.

Your financial documents. 

Be sure to take all of your financial records (bank statements, super statements, payslips, certificates of title for properties, share certificates, registration details for motor vehicles, life insurance policies etc), passports, birth certificates, marriage certificate (if relevant) and children’s birth certificates/passports (if any) with you when you leave the family home.  It may be difficult for you to return to the home to obtain these items and your ex may resist you returning.

Always seek advice from a family lawyer before you leave the family home so that you have enough information about the benefits/consequences to make the decision that is best for you.

You want your ex to go

If you want your ex to go it may not be easy to get them to move out if they are not agreeable to moving out. If your ex refuses to leave the only way to “force” them to move out is to seek an order from the Federal Circuit Court for sole occupation of the property.

It is important that you see a lawyer who has expertise in family law matters before you make an application to the Court as they can advise you about how likely it is that you will be successful.  You need good reason to bring an application for sole occupation and it can be a very costly exercise, especially if your application is not well prepared.

For more information please contact Tindall Gask Bentley, South Australia’s largest family law firm, where one of our family lawyers will be pleased to help you with all aspects of your family law matters.