Who Gets to Stay in the House During Separation Australia: 6 Essential Factors to Consider

Separation is often a challenging and emotional process, especially when it comes to determining living arrangements during this period.

The question of who gets to stay in the house during separation Australia can be complex, as it involves legal considerations that vary from one case to another.

In this article, our property settlement lawyers will explore the relevant laws and factors that determine who gets to stay in the house during separation Australia.

Table of Contents

1. Understanding the Legal Concept of Separation

In Australia, separation is recognised when a couple decides to end their de facto relationship or marriage.

To be considered legally separated, the couple must live separately and apart, with no likelihood of reconciliation. This separation period often sets the stage for important decisions related to property division, including the family home.

2. Ownership of the Property

The first crucial factor in determining who gets to stay in the house during separation is the ownership of the property. Generally, there are two common scenarios:

a. Sole Ownership: If one partner solely owns the house, it does not necessarily mean that they have full entitlement to the property. Who can stay in the property after separation is assessed on a case by case situation and is often decided based on the needs of each party.

b. Joint Ownership: If both partners are joint owners of the house, the situation becomes more complicated. In such cases, the decision on who gets to stay may depend on various factors, including financial contributions, non-financial contributions (e.g., homemaking or childcare), and the needs of any dependent children.

Also read: Tenants in Common Vs Joint Tenants

3. Financial and Non-Financial Contributions

Australian family law also considers financial and non-financial contributions towards the property when considering who gets to stay in the home during separation. Financial contributions include income, savings, and direct payments toward mortgage repayments. Non-financial contributions, such as caring for children or performing household duties, are also recognised and considered.

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5. The Need for Temporary Orders

Sometimes, separation can be contentious and may require interim arrangements until a final decision is made. Parties may seek temporary orders from the Family Court to decide who gets to stay in the house during the separation period. This is called a sole occupation order.

Also read: Can a Separated Spouse Enter the Home

6. Mediation and Dispute Resolution

Before seeking court intervention, it is often advisable for separating couples to attempt mediation and dispute resolution. These alternative methods can help the parties reach an amicable agreement on living arrangements, avoiding costly and emotionally draining court proceedings.

Example of Case – Deciding Who Gets to Stay in the House During Separation

Let’s go through an example case to see how things will play out. We were approached by Joanna who had recently filed for divorce against her husband. She was deeply concerned about who gets to stay in the house during the separation in Australia.

Firstly, we scheduled a face-to-face consultation to thoroughly understand Joanna’s situation and gather all relevant details. This allowed us to assess the specific legal aspects of her case.

Next, we guided Joanna through the process of compiling evidence to support her claim to stay in the house.

We emphasised the importance of documenting her financial and non-financial contributions to the property during the marriage, especially in terms of childcare and homemaking.

We then explored mediation and dispute-resolution options to help Joanna and her husband reach a mutually acceptable arrangement.

Our goal was to secure the best outcome for her while maintaining a respectful approach during the legal proceedings.

In the end, Joanna’s case was resolved through mediation, and she was able to continue living in the family home, granting her some much-needed stability during this challenging phase of her life.