A question we get asked quite a lot by our clients is: “Do I have to leave the family home?” The short answer is “No, you do not need to”.
Even if the house is in your partner’s sole name, legally, you are not required to vacate the property upon separation. There may be good reasons not to leave the home, and sometimes, separating couples will agree to remain residing under the same roof (see our Article on Separation in Australia).
A popular misconception amongst clients is that if they do decide to leave the family home, they are relinquishing their legal and equitable entitlements to the property and any possessions within the home. This is not the case at all. Leaving the family home also does not decide who will ultimately retain the property as part of a property settlement.
If there was family violence during the relationship or there are current safety concerns, it may be safer to leave the home to protect yourself and any children that you may have. You can also make an application to the Court for an Order that you stay in the home. This is an order made by way of an injunction preventing your spouse from entering or remaining in the family home. The Court will give serious consideration to the financial means and needs of each party (including the needs of any children involved) before granting such an order.
As to who will continue to pay the household bills, it is important to be aware that if you are a legal owner of the home, your obligations to meet the outgoing expenses will continue, regardless of whether you live in the property or not. You and your former partner should try to reach an agreement as to who is going to pay for what during the period when you are negotiating your final property settlement.
It is usually the case that the party who remains in the home will meet the associated expenses of the house, but this is not a hard and fast rule. In cases where the primary caregiver of the children remains in the house with the children and has either no or modest income, the usual expectation is that the other party will continue to pay the household bills until the property settlement is finalised.
If you are going through a separation, it is important to receive legal advice early on and before you decide whether you will stay in the home or leave. If you do decide to leave, it is a good idea to plan your departure.
If you would like further information or advice on Family Law matters, please contact one of our experienced Family Law solicitors at our Modbury or Adelaide offices by email at reception@wbrlaw.com.au or by telephone on (08) 8359 3444.