“That’s it, I’m outta here!!”


Should you stay or go after separation?  The decision as to who should leave the home after separation can be difficult for couples to make.  There is no legal answer to this question.  If there are children of the relationship, then the best interests of the children must be considered.  If it is clear that the children will remain in the care of one parent more often than the other, then it may best for the main carer to remain in the family home.  If it clear that one party to the relationship is more likely to retain the property in the overall distribution of the asset pool, then that person may be the obvious choice as to who remains in the family home.


If you are the one leaving then you should take your share of household items as well copies of your records, including tax returns, superannuation statements, bank records, passport, visa documents and any other important documents.  It is often the case that once you have left, it becomes very difficult to obtain those documents from the other party.


Although there is no law covering whether or not you should return to the family home ‘uninvited’, in the interests of preventing unnecessary conflict or disputes it is a good idea to let the remaining party have ‘exclusive occupation’ of the family home.  It also prevents any accusations of you removing items from the home that you may not have been entitled to.


What about mortgage repayments?  If you are the one leaving and you are named on the loan documents, your obligation to pay the mortgage remains.  Quite often the party who has left has the added responsibility of rent payments and declines to make any further contributions to the mortgage.  If the mortgage falls into default the bank may decide to foreclose the loan and sell the property at a possibly undervalued price.


Often you will hear that you should not leave the family home because in doing so, you will miss out on your entitlements.  This is not the case.  Just because an item is in the possession of one or the other of the parties does not mean that it is not accounted for in the final determination of distribution of the asset pool.  The Court is not interested in which party has left the family home when deciding who gets what in property settlement, after considering the values, various contributions and other factors, the Court is ultimately interested in whether or not the overall property settlement is deemed fair and equitable.



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