Your marital home rights as a party to a divorce are important for your future. People who have just gone through a divorce go through the property settlement phase. So, who gets what? This is a pretty common question that arises during separation or divorce, more so, a catalyst for disputes.
For example, not being aware of marital home rights may influence the parties’ standard of living. One partner may have no place to move to or no money to fend for themselves. Having some knowledge regarding your marital home rights may assist you when going through such cases.
Who Stays in the Marital Home?
Well, this is quite a controversial querstion for divorcing couples. Naturally, a couple who jointly own the marital home has the equal right to live there. In some divorce cases, one partner originally owns the marital home and let their partner live with them. In such cases, the partner who moved in, leaves the home.
The bottomline is, one party will have to move out or both partners will sell the marital home. While possible, it would be awkward if both parties still lived together even after separation.
After separatioon, both parties remain responsible for the home’s expenses, like rent and mortgage. Therefore, ex-couples must agree on how to divide and pay these costs.
Property Settlement: How Does It Work?
We mentioned that divorce parties will need to go through the property settlement phase. This is the process of dividing property after divorce. Will one party gain more than the other? Is it a fair share? Whatever the result is, both couples can agree with each other without family court interference.
If they want a more secure and quick property settlement procedure, they may also use post-nuptial agreements or pre-nuptial agreements. These binding financial agreements prevent one party from gaining rights over a certain property or properties after a divorce. Pre-nuptial agreements are made before marriage, while post-nuptial agreements are made after a divorce.
What About People in a de Facto Relationship?
Under Australian family law, couples (including same-sex couples) who are living on a genuine domestic basis with each other are still in a de facto relationship. It’s a common misconception that de facto couples don’t have as many rights compared to married couples.
This relationship depends on the particular circumstances of a couple, so the law has formulated a set of factors to determine whether a couple is in a de facto relationship. These include:
- Whether the couple is married
- How long the couple has been together in the relationship
- If the relationship was sexual in nature
- There is codependency
- There is property ownership
- Care and child support for children
- The degree of a mutual commitment to a shared life
Each case of de facto settlement is unique, and courts will consider specific conditions of the relationship. Polygamous relationships are also considered, meaning that a de facto relationship does not necessarily have to be mutually exclusive.
Several states and territories allow you to register a de facto relationship through the state’s registry of marriages, births, and deaths. They can provide you with a certificate that can be used as proof of the length of the de facto relationship. For example, in NSW, de facto relationships can be registered online.
Cohabitation Agreements And Disputes
De facto couples may think that property settlement may be unattainable since they are not married. However, this is not the case since Australian family law also have laws where de facto couples benefit.
Unmarried or cohabiting partners, such as de facto couples who live under the same roof, have the option of making cohabitation agreements. This is also a type of binding financial agreement that can help them protect their marital home rights as a couple, while at the same time giving security to their individual assets via a mutual agreement.
By investing in cohabitation agreements, unmarried couples can have similar rights granted to married couples. Such agreements or contracts are limited to financial, custody, and property-related matters.
Court Decisions On Marital Home Rights
Family law courts take into consideration various factors when dealing with divorced couples. What the Court will look at:
- Each party’s means and future needs
- The needs of their children
- Interests of their children (which follow the conditions of Section 60CC of the Family Law Act 1975)
- The conduct of one party if they justify the other party that asks for sole occupancy
- If either of the parties displays improper behaviour, like intimidating or manipulating the other party
- If one of the parties can be housed elsewhere, given that they have adequate needs in that housing
- Each party’s direct financial contributions and indirect financial contributions and non-financial contributions
- Who will it be less convenient for to live away from the marital home
- Any past or proposed financial arrangements
Both partners must disclose all relevant financial resources about their separation if they want a proper resolution. Failure to do so will lead to disagreements. In such cases, seeking mediation from an experienced family lawyer or approaching the court are the options.
Marital Home Rights: Do I Have To Register Property?
Yes! You wouldn’t want your ex-spouse to sell your property without your knowledge or consent because your property is unregistered. To prevent this, it is only essential to register your home rights on legal documents, so other individuals and organisations like Land Registries and banks who are interested in the property will know you have legal rights to it.
To check a property’s registration, you can look at the following:
- Registered Property: This means that the Land Registry holds a record of who owns the property. For queries about owning a property, you may contact the Land Registry for an official copy of the property.
- Unregistered Property: There are records of properties in the Land Registry, but they are kept in separate documents. These are called title deeds. Title deeds show who owns the property and are normally held by a mortgage provider. If you don’t have a mortgage, the title deed may be with the owner or a solicitor.
Failure to register may lead to you needing to leave the property, and even restrict you from making claims for finances during the divorce. Your partner will be informed if you have registered your home rights, and the land registries will not fail to disclose this information to them.
They can put the application on hold for a week should you wish to withdraw or reconsider your application. If the family home is only registered to you, you alone will be informed. However, your spouse may find out about it by making inquiries and searches with the Land Charges Department.
Marital Home Rights: FAQs
| Q: If I left my marital home, can I still have a claim towards it? A: Yes, if one partner leaves the marital home following divorce or separation, they are still entitled to receive a portion of the home during property settlement procedures. This will depend on how property settlement takes place. In amicable divorce cases, both parties mutually agree on how the division of assets should take place. Notably, to be prudent, it is advisable to create binding financial agreements before or during the relationship to ensure that no conflicts take place during property settlement. |
| Q: Does one person have to leave the house after divorce or separation? A: Unless a court order has been made that specifies that one person has to leave the house, nobody can be forced to leave the house. Generally, such matters are settled with the help of lawyers who negotiate, mediate, and facilitate both parties to make agreements. |
| Q: The court can solve my divorce matter faster anyway, so why do I have to go to mediation? A: The court is the one who actually recommends a divorced couple to attempt mediation first for property or parenting matters. Only then will they accept a divorce case if both parties fail to reconcile or come to an agreement about their family law matter. |
| Q: Spousal maintenance is just a myth, right? A: No it isn’t! Either party to a marriage has the legal obligation to provide financial support to their partner if the divorce will affect them financially. However, the burden lies with the receiver of the spousal maintenance to prove that they don’t have any more financial resources to rely on. Check out our Facebook Reel here about Spousal maintenance to know more. |
| Q: If a partner has a history of family violence, can it affect property settlement proceedings? A: Yes. In New South Wales, the court must consider the economic effect of family violence or domestic violence in property matters. |
Do You Want Help With Your Marital Home Rights?
Do You Want Help With Your Marital Home Rights?
Property settlement can get messy without proper guidance or basic legal knowledge. Next thing you know, your one nasty comment at your ex can land you in a lengthy and costly court procedure. We understand that separation can get on some people’s nerves, especially if their ex is being unreasonable or just flat out calling out lies.
Don’t let it get to the point where you’re already drowning in legal fees. At JB Solicitors, our team of expert family lawyers can provide assistance in securing your marital home rights. We only want the best and the most convenient financial or property orders that cater to their specific needs. Let’ss
Let us assess your individual circumstances during mediation to discover a resolution that won’t require court interference and heaps of legal fees.
Contact us today to know more.
