If you’re wondering what your marital home rights are, then you’ve come to the right blog post. Marital home rights give both spouses a legal right to settle in the matrimonial home, regardless of who the owner of the property is. This also means that while some ex-couples may still live under one roof, they can still be considered “separated.”
Going through separation and not knowing your marital home rights can greatly influence your future, which is why these matters need to be handled properly. For example, not being aware of marital home rights may influence the parties’ standard of living. Having some knowledge regarding your marital home rights may assist you when going through such cases.
De Facto Relationships Rights
Under Australian law, couples – including same-sex couples – who are living in a genuine domestic basis with each other are said to have a de facto relationship.
This relationship depends on the particular circumstances of a couple, so the law has formulated a set of factors to know 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 support of the children are present
- The degree of a mutual commitment to a shared life
Each case is unique and examined individually and specific conditions of the relationship are taken into consideration. Polygamous relationships are also considered, meaning that a de facto relationship does not necessarily require to be mutually exclusive.
Several states and territories can grant 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
Unmarried or cohabited partners such as de facto couples who live under the same roof have the option of making legal agreements (or cohabitation agreements.) This can help them protect their marital home rights as a couple, while at the same time giving security to their individual assets.
Unmarried couples may face instances of breaking up, especially when the relationship is not legally registered. Therefore, an advisable way to avoid further conflicts is to plan ahead.
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
The Court takes into consideration various factors when dealing with divorced couples. What the Court will look at:
- Each party’s means and needs
- The needs of their children
- Interests of their children
- 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
- Whom will it be less convenient for to live away from the marital home
While some couples come to an agreement regarding marital home rights, some couples don’t come to a mutual agreement. In such cases, seeking mediation from solicitors or approaching the court are the options.
Registered Vs Unregistered Properties
1. 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.
2. Unregistered Property: There are records 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.
Marital Home Rights: Do I Have To Register Property?
A scenario that can happen to you when not registering your property under your name is that your spouse can sell or mortgage the house without your consent and knowledge. 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.
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 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
- If I left my marital home, can I still have a claim towards it?
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 division of assets should take place.
Notable, 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.
- Does one person have to leave the house after divroce or separation?
Unless a court order has been made which 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.
Importance Of Seeking Legal Advice
Securing marital home rights is never easy to tackle alone. Legal documents, disputes, and costs pose great stress when not handled properly.
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 procedures for our clients..
Contact JB Solicitors today
