When One Person Wants to Remain in Family Home

In this video, Page Provan Managing Director, Bruce Provan discusses the legal implications when one person wants to remain in the family home following separation.

Transcript

My name is Bruce Provan. I’m the Managing Director of Page Provan, Family and Fertility Lawyers. We’re a firm of lawyers in Central Brisbane that practice exclusively in the Family and Fertility Law.

I want to talk to you today about the question we sometimes asked is, if I separate, should I stay in the family home? And the answer to that question is, it depends. In both situations, if you are able to stay in the family home, that would be preferable, especially if you’re the primary carer for the children.

Because what’s important for children at the time of separation is that they have stability in their lives, and if staying in the home adds to that stability, that is a good thing for the children. There are other reasons why you might prefer to stay in the home.

For example, if one person leaves the home, then they are generally required to pay rent elsewhere, and so you don’t want to be in a situation where if you leave in the home or you’ve left the home and you’re paying rent elsewhere, but you’re also required to pay the mortgage on the property as well.

What happens most often is that the person who leaves the home pays rent and the person who stays in the home pays all or at least a large portion of the mortgage payments.

What’s important to avoid though, is a situation where there’s domestic violence going on in the home, and if you feel that you’re unsafe, often you’re better off to leave the home to protect your own safety.

What I suggest to clients is to have a discussion with their partner if they’re contemplating a separation about who is going to remain in the home and who is going to leave, because most of the time, people can agree on that.

But if you ask your partner to leave and they refuse to do so, the only way you can force them to leave is to make an application to court to seek either a domestic violence order that requires them to leave the home or an order under the Family Law Act for sole possession of the home.

But neither of those are easy to get. One question I’m sometimes asked by clients is, Can I change the locks on the home? And the answer to that is, Well, yes, but it’s usually not a good idea because often it just inflames things sometimes unnecessarily, and there’s nothing to stop the other person from going and changing the locks again.

So if you are contemplating separation and considering whether you should leave the home or not, it’s important to get advice from a lawyer at an early stage about the pros and cons.

As I said, it’s very important to protect your own safety, and if that means leaving the home, well, that’s the best option available. My name is Bruce Provan from Page Provan, Family and Fertility Lawyers.