By Hayder Shkara, Principal of Justice Family Lawyers
Spouses that were once so in love and dreamt of living the life of happily ever after may discover that their wishes might no longer come to pass because of one thing or the other. To save them more troubles of emotional dilemmas, and unhappiness and help them quickly move on to living the life they intend to, they may decide to separate. To this end, many questions shoot up. One of them is, “What happens to your home when you separate?”
Wondering what happens to your house when you separate is a question that couples and other people who plan to separate always ask. To answer this question, the first question to consider is who can stay in the home after you separate.
Who Can Stay in Your Home After You Separate?
Both parties have the right to remain in the house after being separated. A spouse cannot force the other out, and if one person decides to leave the house, he or she can return whenever they feel like it. However, it is always more comfortable if the spouses agree on who will leave the house and who will remain after their separation is complete.
Such an agreement is always presented in court with the separation papers. But if both parties cannot agree, the court may also be allowed to make the final decision.
What If the House Belongs to Both Parties?
If the house belongs to both parties, they can agree to sell the house and split the money after getting separated. Another option is that the one who gets to stay in the house as ruled by the court may ask for financial compensation, especially if the party is expected to rent a place elsewhere or keep paying for electricity, water bills, or mortgage.
What If One Party Illegally Forced the Other Out?
There are situations where one party has forced the other spouse out of the house illegally (without getting a court order). Usually, the best way to settle this is to take the case to court and ask the judge to allow him or her back to the house. You are advised to quickly take this action; depending on how fast the complainant files the case, this will positively influence the outcome.
Who Has the Right to Live in the Home?
One of the spouses can get an exclusive right to keep the house, and that is done by urgently filing a request. In the request, the spouse will reference the separation case outlining they would like to continue living in the home after separation.
It’s possible the spouse is requesting to be granted this right by taking away the same right from the other spouse, who may even be the house’s real owner.
The judge will most likely consider the following before deciding on the case:
- The children’s interest (if they have kids)
- If the spouse can get another place to stay
- The inconveniences each spouse may be causing to their children
In the end, the judge may decide to grant the request and order that the spouse who owns the house can only come around with the other spouse’s permission.
Property Ownership and the Law
Property ownership can be a significant factor in determining what happens to the house when you separate. Therefore, how your property is purchased will play a vital role in some cases. Spouses may have purchased their house in joint ownership and may have agreed that they will have equal shares of the property, and their negotiation must begin from a 50-50 split possibility.
To easily protect your property from the law during separation, make sure that your name is documented as a co-owner of every property you and your spouse purchase. Make sure to do this for a property that you purchased alone, as well.
Can Your Spouse or Partner Sell the House Without Your Consent?
If you live in a property and suspect that your spouse is attempting to sell it, quickly consult with a specialist lawyer and take some legal advice to work with. Always treat this as a matter of urgency.
Hayder Shkara is the principal of Justice Family Lawyers. He has vast experience in family law but specializes in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and a Bachelor of Communications from UTS. www.justicefamilylawyers.com.
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