Family Law

Will I lose my right to the family home if I leave after separating?

The decision to leave the family home following separation is an extremely difficult one to make. Will the children be ok? Will I lose my right to the family home if I leave? What about the mortgage? These are the questions that often arise when making the decision to leave.

This post is intended to answer some of the questions you might have when deciding whether to move out.

Does leaving impact my right to a property settlement?

If you have left the family home following separation, this will not impact your right to a share of the family home as part of your right to a property settlement. It doesn’t matter whether the property is held in your name, your former partners name, joint names, or by a corporate entity that one of you controls.

Please see our post “Are Assets Always Split 50/50 In A Property Settlement?” for a detailed explanation about how a property settlement works.

What about the mortgage?

If your name is on the mortgage, the bank will continue to hold you responsible for the mortgage repayments regardless of whether you are living in the home.

It’s always a good idea to try to reach an agreement with your former partner about how the mortgage will be paid following separation (because neither of you will want a bad credit rating!). If you can’t agree, your lawyer can assist with negotiations.

A viable option to reduce costs is to talk to the bank to see if you can change the repayments to interest only until the property settlement is finalised.

In the event neither of you can afford to meet the mortgage repayments, it may be that you and your former partner agree that the family home should be sold. If this occurs, it’s important that you direct your conveyancing solicitor to hold the sale proceeds in their trust (bank) account until the property settlement is finalised.

If you can’t reach an agreement about payment of the mortgage, then you can apply to the Court for orders about who lives in the home and pays the mortgage. You can also seek an order that the property be sold. Going to Court should always be a last option and alternative dispute resolution such as mediation should occur first. Please see our post “Why you should avoid going to Court in Family Law”.

What if I can’t afford to move out or don’t want to?

If you are receiving a government payment, you should speak with the Department of Human Services to see if you are eligible for rent assistance.

You can apply to the Court for an Order that only you be allowed to occupy the home if you and your former partner haven’t been able to agree on who will stay in the family home. This is called a “sole occupancy order”.

When determining an application for sole occupancy, the Court will need to consider whether or not it is reasonable, sensible or practicable for you and your former partner to continue to live under the same roof. Considerations will include:

– The means and needs of you and your former partner;

– The needs of your children;

– Any hardship to you, your former partner or your children;

– The level of conflict between you and your former partner; and

– Any conduct that would justify you or your former partner being made to leave the home, such as family violence.

If a sole occupancy order is granted, this will remain in place until a further or final order is made.

Sole occupancy orders are not easy to obtain, and significant costs are often involved when making such an Application. For these reasons, people often try to negotiate between themselves (or through solicitors) to resolve the issue and avoid Court.

What if my partner has been violent towards me?

If your former partner has been violent towards you, you can apply to the Court for a Protection Order. As part of your Application, you can seek an order that your former partner leave the family home. This is called an “ouster order”. It’s important to understand that the Court does not make an ouster order lightly.

Would you like further information?

If you would like to discuss your family law matter, please contact us today or book an appointment online.

By Tegan Martens
Director & Principal Family Lawyer
Martens Legal



The information contained on this site is for general guidance only.  No person should act or refrain from acting on the basis of such information.  You should seek appropriate professional advice based on your particular circumstances.