It is a common misconception of client’s that if they leave the former matrimonial home that they are somehow adversely affecting their rights to that home in a property settlement with their former spouse.  This is not entirely correct.

The fact that one person must leave the home upon separation is inevitable in most circumstances.  In more amicable circumstances it is possible for the parties to live with one another “separated under one roof”.

However, in the event that a party vacates the home, the law does not change in respect of that person’s entitlement to a property settlement with the other spouse.  The only real way in which it affects a party is in respect of retaining the property.

For example, in the event that the parties agree the property can be sold and the proceeds divided or the property can be retained by one party upon the provision of funds from the party retaining the property.

In the event that the parties cannot agree on who will retain the property, the Court may need to decide this point.  The party that is living away from the home may have less likelihood of retaining the property as they would have secured accommodation elsewhere.  This is not to say that this is what the Court would order.  However, there is a potentially stronger argument for the person residing in the home to retain it.  This would depend on many factors such as the ability to secure accommodation elsewhere, improvements and maintenance to the property made since separation, payment of mortgage and council rates, whether there are children and where the children will remain and so on.

For the person that has vacated the former matrimonial home, this does not in fact effect their entitlement to the property.  The property is a matrimonial asset, regardless of what name the title to that property is in.  This property will be added to the matrimonial pool and divided according to the financial and non-financial contributions of the parties and also taking into consideration other matters such as primary carer for the children (if applicable), earning capacity of the parties, age of the parties and so on.

For a more detailed analysis of your personal circumstances please phone our experienced family law team for a confidential fixed fee consultation on 1300 HATZIS.