The family home is often the most significant asset in a divorce, and determining what happens to it is a central part of the property settlement. The court’s approach isn’t automatic – there’s no presumption of a 50/50 split, and many factors are considered to reach a fair outcome.
How does the court decide who gets the house?
The Family Law Act provides the court with broad powers to determine a just and equitable division of property, including the family home. This involves considering the contributions of each party, both financial and non-financial, to the relationship. These contributions can include things like income, childcare, and homemaking. The court also considers the future needs of each party, such as their age, health, and earning capacity.
What if one party wants to keep the house?
It’s common for one party to want to remain in the family home, particularly if there are children involved. If this is the case, the court may order a transfer of the property to that party, but will usually require a compensating adjustment to be made to the overall property settlement. This could involve the other party receiving a larger share of other assets, or a lump sum payment. The court will consider whether this is feasible and fair to both parties.
Can the house be sold?
If neither party can afford to keep the house, or if it’s the fairest outcome, the court may order its sale. The proceeds of the sale are then divided between the parties as part of the overall property settlement. The timing of the sale can be a point of contention, and the court may make orders regarding when the property must be placed on the market.
The valuation problem
Determining the value of the family home is often a significant challenge. Disagreement about valuation is common, and obtaining a professional valuation can be costly. If the parties cannot agree on a valuation, the court may order a single, independent valuation to be obtained. However, even then, questions can arise about the methodology used and the accuracy of the valuation.
Questions to consider
- What are all of my financial and non-financial contributions to the relationship, and how can I best demonstrate these to the court?
- What are my long-term financial needs, and how will these be impacted by different outcomes regarding the family home?
- What are the tax implications of keeping the house versus selling it and receiving a share of the proceeds?
This information is general in nature and does not constitute legal
advice. For advice specific to your situation, contact JB Solicitors.