For most Australians, the home is not just their most significant financial asset, but a place of security and stability, particularly if children are involved. Beyond the memories attached to a home, the practical question of “who gets the house?” is often the most pressing financial concern after a couple separate.
This article explores how Australian law approaches the division of property, including the family home, after a breakup.
The information is general only and does not constitute legal, taxation or financial advice. You should obtain professional advice tailored to your circumstances before making decisions.
How Assets are Divided
The Family Law Act 1975 (Cth) sets out the principles for altering property interests, and the Federal Circuit and Family Court (“the family court”) commonly applies a four step process: (1) identifying the property pool, (2) assessing each parties financial and non-financial contributions, (3) considering each party’s current and future needs, and (4) deciding whether the overall division of property between the parties is just and equitable, meaning a fair outcome for both parties.
This four-step process applies for both married and de facto couples, provided the de facto couple meet certain criteria. Relevant factors considered for de facto couples include the duration of the relationship, whether there is a child of the relationship, the existence of substantial contributions, or whether the relationship is registered with Births, Deaths and Marriages Registry in the relevant State and/or Territory.
Step 1: Identifying the Assets and Debts
The first stage of a property settlement involves identifying the parties’ assets, liabilities and superannuation entitlements.
Assets commonly include the family home and other real estate, motor vehicles, shares, and savings. Generally, all assets, whether held jointly or individually, or through a trust or company, are identified in the property pool for division, and any additional financial resources (such as certain trust interests or anticipated inheritances) are taken into account when assessing contributions and future needs.
Step 2: Assessing Contributions
The second step of the property settlement process involves assessing both parties’ financial, non-financial contributions, and contributions as homemaker and parent.
This is broken down into:
- Financial Contributions: The financial contributions each person made, such as income, savings, and the assets brought into the relationship are assessed. As for the family home, factors such as who paid the deposit, who contributed towards the mortgage repayments, and whether one person received an inheritance that was applied for the benefit of the home are considered.
- Non-Financial Contributions: These include unpaid labour to help build, improve or maintain the family home or family without direct monetary payment.
- Homemaker and Parenting Contributions: This includes caring for children, maintaining the home, managing the household, and supporting the other person’s career. Family law recognises that homemaker and parenting contributions are significant, and in many cases, are treated as comparable to the contributions of the primary income‑earner. The weight given to each type of contribution depends on the facts of each relationship.
Step 3: Considering Current & Future Needs
The law considers each person’s current and needs If one partner has a lower earning capacity or will be the primary carer for children, they may be entitled to a larger “slice” of the asset pool to ensure they can support themselves and the children. Other factors, such as age, health and the availability of financial resources, can also be considered when assessing “future needs”.
The Impact of Family Violence
Where there has been family violence, the court may take into account its impact on a person’s ability to contribute during the relationship and its ongoing economic effects, which may justify an adjustment in their favour. Family violence can also be relevant to a person’s future needs, for example, where it has ongoing consequences for their health, safety or earning capacity.
Step 4: Is it Fair?
In determining a final property settlement, a court will step back and ask: “Is this overall result fair to both parties?” The court must be satisfied that the proposed orders are just and equitable in all of the circumstances.
Can One Person Keep the House?
Yes, depending on the circumstances. It is common for one party to keep the home, but this usually requires a “buy-out” figure from the other party. This is often achieved by refinancing the mortgage into one name and paying a settlement sum to the departing party.
If neither person can afford to buy the other out, , the most common outcome is that the house is sold, and the proceeds are divided according to an agreed settlement.
Practical Considerations: Who Stays During the Separation?
Often, the biggest conflict happens right at the start: who lives in the house now? Following are some key considerations:
- You don’t lose your rights by moving out: Leaving the home to reduce conflict does not, by itself, cause you to lose your legal interest in the property. However, one party may use “delay” tactics by staying in the property and avoiding negotiations for a property settlement.
- Exclusive possession: In limited cases involving domestic violence or extreme circumstances, a court can grant an “exclusive occupation order”, legally requiring one person to leave the premises, regardless of whose name is on the title. When deciding whether to make such an order, the court may consider issues such as family violence, hardship to each party, the availability of alternative accommodation, and the best interests of any children.
- Children come first: The court’s primary concern is the welfare of any children. If moving the children would be highly disruptive to their schooling or stability, this may influence who stays in the home in the short term.
Steps You Can Take Now
If you have recently separated and are worried about the family home, consider these practical steps:
- Communicate with your bank: Contact your bank to notify them of your new circumstances. You may need to update passwords for internet banking, set up your own savings account (if you don’t already have one), cancel joint credit cards, or ensure that dual authorisation applies for certain accounts.
- Organise your paperwork: Gather bank statements, mortgage documents, superannuation statements, previous three years tax returns, previous three months payslips, Redbook valuations for motor vehicles and records of inheritances/gifts received during the relationship (if any). Create a list of all assets and liabilities.
- Know the numbers for your mortgage: Create a clear picture of your loan balance, any funds in offset accounts, and potential exit fees or “break costs” if you were to sell. A property valuation by a suitably qualified and accredited valuer provides a defensible figure for negotiations.
- Communicate in writing: If you are discussing the house with your ex-partner, try to keep it to email or text so there is a clear record of communication, and to avoid any verbal agreements.
- Seek legal advice early: Even a single consultation with a family lawyer can give you a clearer understanding of your likely range of entitlement and your options, which can help you to avoid making agreements that are not in your interests.
The Importance of Legal and Financial Advice
Even if you and your ex-partner separate on good terms, independent legal advice is vital before finalising a property settlement.
Stamp duty exemptions are often available for transfers of real estate pursuant to a Federal Circuit and Family Court of Australia (‘Family Court’) order, Because these rules differ between jurisdictions and can change over time, it is important to obtain advice about the current position in the state or territory where the property is located.
Other considerations such as capital gains tax may also be relevant which can make a significant impact on the overall property adjustment. The way CGT main residence exemptions and rollover relief apply can depend on the specific facts and timing of any transfer or later sale. Consulting a financial advisor/tax professional can ensure these factors are appropriately considered.
Key Takeaways
- No 50/50 guarantee: Property division is based on what is fair, considering both financial and non-financial contributions, rather than an automatic equal split.
- The “homemaker” role matters: Caring for children and the home is recognised as a significant contribution, and in many cases can be treated as comparable to income‑earning contributions.
- Buy-outs are common: One partner can keep the home if they have the financial means to pay a settlement sum to the other party and have the borrowing capacity to do so.
- Tax and duty considerations: Stamp duty and capital gains tax consequences can have a significant effect on the overall outcome and should be considered early with appropriate professional advice.
If you or someone you know wants more information or needs help or advice, please contact Tolis & Co Lawyers on 08 8443 4888 or email [email protected].