Family Law Blog

We’re Separating – Who Stays in the House?

The complexities of the separation process come with many decisions. One early hurdle is deciding who, if anyone, should stay in the house if you’re separating or separated?

There’s no one size fits all solution here, but there are certainly some factors you’ll want to take into account.

Costs and Complexity of Moving

Moving out of the family home, especially if you have been there a long time, is a large job and not necessarily one you can always tackle at the same time as everything else that’s going on in your separation.

You may or may not be able to find alternative accommodation in the right area, which can affect your job or your commute time. There’s always a chance that any final property settlement might involve another shift of personal effects as well, so there’s a risk of double handling things.

Access Concerns

If you move out of your house, there’s always a chance that the spouse who remains might refuse to let you in.

If that happens, attempting to force your way in isn’t going to be viewed well by the Courts, and there’s even a chance that your ex might seek a protection order against you if you do.

The Mortgage

Many spouses have joint mortgages and joint loan obligations.

So if one spouse moves out of the home and, as a result, no longer contributes to the loan will the bank repayments still be possible? If not, how are you going to arrange and document any agreement you might reach about that topic? What will happen if things change or one party defaults or loses their job?

Because the family home is often a significant asset in the property pool for separating parties, it generally doesn’t make good financial sense for anyone to let the loan get into default and leave the bank to sell at auction. However, not everyone will agree on this. It’s easy for a person who no longer gets to live in a house start to feel that it’s unfair for them to contribute to the mortgage repayments, especially if things drag on for a long time.

What about Nesting (Taking Turns to Live There)?

What is “Nesting Parenting”?

“Nesting” is where you and your ex take turns living in the house, while your children reside there full time.

It’s easy to see how this sounds like a good arrangement, offering stability for children of the relationship. However, practically speaking, it provides a lot of challenges, especially if your separation becomes acrimonious.

What if, for example, one spouse decides to have a party at the house the day before the other returns and simply leaves all the mess out?

What if new partners are invited over during the week?

What if someone’s personal items get lost or damaged?

Beyond these issues, these arrangements can be quite confusing for children and stressful for parents who then need to find alternative places to live when it’s not “their turn”.

So while nesting is a lawful arrangement to consider, you would need to ensure you had considered whether it was really a good one for your situation.

Can the Courts Force Someone to Move Out?

Yes, the Family Court can order a party to leave the family home if necessary.

Before that, however, it’s often best to attempt other methods of resolution.

First, if possible, have a discussion with your ex and see if you can come to an agreement that minimises the risks above and meets both parties’ needs as much as possible.

If that is not successful or not possible due to communication challenges, then you can engage a dispute resolution practitioner or a mediator who might be able to assist you and your ex to reach a resolution.

Of course, if you have concerns about domestic violence or the safety of your children, then you should get advice about the possibility of an Intervention Order. Such orders can include, if necessary, a condition where your ex must leave the family home.

Need Help Navigating the Issues?

We’re happy to help you work through all the issues of the separation process, including how to deal with the family home arrangements. Get in touch here if you need help.


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