Living Arrangements After Separation: Who Can Stay In The Family Home?

It’s perfectly normal for a separation to feel hard; for most people, the process is difficult emotionally, financially, and logistically. As a relationship breaks down, one question typically arises first; “Where am I going to live?”. Confirming your new living arrangements can be a complex problem to navigate, especially when there are kids involved. There are lots of solutions to this problem, and no one right answer. Should you stay in the family home with your children? Should your ex-spouse live in the family home and you leave with your children? Should you sell your family home and move into your individual properties? Deciding on the solution that’s best for you and your family can give you a welcome sense of security in a time of uncertainty.

Let’s have a look at some of these solutions in some more detail, so you better understand your options.


Can You Live Under the Same Roof?

By law, your living arrangements post-separation can include living under the same roof. It is possible to qualify for a divorce while living with your ex-spouse as long as you can prove to the Court that you are separated. Evidence of your separation may include:

  • You sleep in separate bedrooms;
  • You do not perform household services for one another, for example, cook for each other;
  • You do not attend social functions together;
  • You have communicated with your friends and family of your separation;
  • You no longer present yourself as a couple to the public, friends or family;
  • You no longer have a sexual relationship;
  • You no longer wear your wedding rings; and
  • You have separate finances and bank accounts.

Keep in mind that this is not a checklist and each person’s unique situation will be considered.

To file for divorce, you and your spouse must be separated for at least 12 months. You may be separated and living in the same house for part or the entirety of the 12 months, but you must provide proof of separation through an affidavit. The affidavit must present evidence that there has been a change in the marriage, and you must also explain why you and your spouse continued to live together following the breakdown of the marriage.


Can One Spouse Stay in the House and Ask Their Partner to Leave?

In the event of a marriage breakdown, both parties are entitled to remain in the family home. There is no presumption as to who can stay in the house. One party cannot force the other to leave the house and find other living arrangements and no law enables one party to remove the other person from the home for the sake of removing them.

If there are safety concerns for any children involved or there has been a situation with domestic violence, a party can apply for an injunction concerning the occupancy of the family home. Under section 114 of the Family Law Act 1975, the Court has the power to grant an injunction, in this case, a Sole Occupation Order that requires one party to vacate the family premises. For the court to grant the injunction, it must prove that the Sole Occupation Order is just and convenient.


What If There are Children Involved?

Divorce is a life-altering experience for children and one that needs to be handled with sensitivity. In any family law matter, parents should always consider what is best for their children before making any decisions regarding living arrangements.

If both parties prefer not to continue living under one roof but they wish to keep the children in the family home, then they will need to agree as to who will remain in the home with the children and who will leave. Keeping your children in the family home will not only minimise the impact of the separation, but it will also provide them with a familiar environment during an emotional period of their life.

If one party decides to leave the family home with the children, it is important to understand the possible consequences of this decision. For instance, an address change could impact where your children go to school. This party does have the right to take any critical documentation or possessions to their new home. Critical documents that you should take include:

  • Passports (both yours and your children);
  • Credit and debit cards;
  • Personal identification;
  • Birth certificates;
  • Financial statements;
  • Medical information; and
  • Documents relating to your children, for example, school documentation.


Is Selling the Family Home the Best Option?

In some cases, it may be best to leave and sell the family home, especially if neither party can afford to live in the home on a single income or afford to buy out the rest of the mortgage.

Whether the property is owned solely by one spouse or by both spouses, the property is likely to form part of the net asset pool available for splitting at settlement. Once the property is sold, there must be an agreement between spouses as to how the sale proceeds will be allocated. It is best to speak to a family lawyer regarding property settlements and splitting assets. Both parties can then choose living arrangements that suit their needs, lifestyle and budget. However, if children are involved, those new living arrangements should always satisfy the best interests of the child.

Regardless of who owns the family home, it should always be in your best interest to protect your property. If you believe your ex-spouse might sell or transfer the property without your knowledge, then you may have the right to take immediate legal action. Under section 114 of the Family Law Act 1975, a party can apply for a court order, or injunction, to stop their ex-spouse from selling or disposing of an asset of the relationship.


Speak to a Family Lawyer About Your Living Arrangements After Separation

When it comes to navigating living arrangements while going through a divorce, it may be best to seek legal advice from a family lawyer. At Pullos Lawyers, our experienced legal team can guide you through the divorce process as well as any considerations regarding property settlement.

To speak to one of our lawyers today, please get in touch via email, or call us in our Gold Coast office on (07) 5526 3646, or in Brisbane on (07) 3144 1641.