The Family Home
The main item of property which most people will own will be a house, or home unit or block of land. Ownership of a house and land will normally be in one of the following three forms, Joint Tenancy, Tenants in Common or Single Ownership.
This is the most secure form of ownership for both parties in a marriage or de facto relationship. One spouse cannot sell the property without the other’s permission and on the death of one of them, the other automatically has ownership passed to them.
Tenants in Common
Here each spouse has a particular, usually half, share in the property. A spouse cannot sell the property without the other’s permission but ownership does not automatically pass to the other spouse on the death of one of them. Each spouse has the right to will their share to whoever they wish on their death.
The house will sometimes be registered in the husband’s or wife’s name alone. During the course of the marriage, the house will be treated as belonging to the spouse in whose name it stands. That spouse can mortgage it or sell it without the other’s permission. On separation, the spouse who does not own the house can protect their interest by applying to the Family Court to seek a court order (called an injunction) to stop the other spouse from selling the house or getting a loan on it without the non-owner spouse knowing about it. On the breakdown of the marriage, a spouse can be given all or part of the house by the Family Court even though it is in the other spouse’s name.
Occupancy and Sale
Right of Occupancy
Regardless of whose name the house is in, a married person is entitled to live in the matrimonial home unless there is a court order requiring the person to leave. This applies equally to the husband and the wife. If both parties are in the house, the Court can order one party to leave. If the parties are only separated the court can order one party to leave the premises, upon a succesful Sole Occupancy Application. The court can also order that the party living there is to continue in occupation. In deciding who should have occupation, the Court considers the needs of both parties including who is caring for the children. The Court can give occupation of the home to one party even if it is in the other party’s name. The Court may be reluctant to order a party to leave the home unless the needs of the other party clearly outweigh their right to occupy. Occupancy does not affect the ownership of the property.
Threats to Sell
If a party is threatening to sell, give away or mortgage the home or any other property during the separation and before the final property order, the other party can stop this by applying to the Court for an injunction to restrain the other party from dealing with the property. It does not matter that property is in the sole name of the party who wants to dispose of it.
Division of Property
There are no automatic rules about how property is to be divided. A party is not necessarily entitled to 50 per cent of everything nor is a party entitled to keep everything that is in their name or everything which they have paid for. The Family Court has very wide powers to divide the property and in some cases the debts of a marriage in whatever way it thinks is fair and equitable. The general principle is ‘what is fair in the circumstances’.
It is important to remember that no two cases are the same and separating couples should get legal advice on their case from a lawyer who specialises in family law.
Selling the House
If there is enough other property, the Court may give one party the home, especially if they are looking after the children. However, if there is no other way of giving each party their fair share, the Court will order the sale of the home. In some cases the Court may postpone the sale and let the parent caring for the children stay in the house until the children grow up, if this is not too far in the future.
Page last updated 14/12/2017