A Guide To Keeping The Matrimonial Home
Divorce and the matrimonial home can bring about many emotions for you and your partner. For most separating couples, the matrimonial home is one of the biggest purchases made together, is filled with happy memories and is where your children grew up — making the decision on who gets to claim the property all the more difficult.
If you believe you have a fair claim to the marital property, you must get on top of your application as soon as possible. In this blog, we’ll share a detailed guide on how you can keep your former matrimonial home and provide insights into what the Court considers when making its decision.
What is a matrimonial home?
When couples decide to separate, whether from a marriage or de facto relationship, one of the many decisions that must be made is how they intend to divide their property and debts, including the matrimonial home. The matrimonial home is the home you and your partner formerly lived in and is possibly the largest asset you both share, warranting special consideration during the division of assets.
Under Family Law, the matrimonial home can be considered to be one of the most significant assets, as it’s more often than not the primary place of residence for a separated couple’s children.
Court decisions on marital home rights
While the Court encourages separating couples to settle the matter of the matrimonial home between themselves, if they cannot agree on who will claim the home, the Court will make the decision fairly, based on the case’s unique circumstances. In some cases, the Court may determine that the most reasonable decision is for the property to be sold and the proceeds divided between the parties in some determined proportion.
Some of the factors the Court will consider during the decision, along with the necessary assessment of contributions to the matrimonial pool of assets, may include:
- The means and needs of both parties
- The needs of their children and their best interests
- If one party has asked for sole occupancy
- If any party has displayed poor behaviour during the divorce process
- If any party can be adequately housed elsewhere
- If it’s less convenient for one party to live away from the home
Matrimonial home rights — how can I keep the marital home?
If you believe you are entitled to claim your former matrimonial home, it should be mentioned as part of your court application. Before making this request a part of your application, it’s encouraged that you seek professional legal advice, as a family lawyer should be able to inform you whether your claim is justified.
Legal counsel is highly recommended if you have reason to believe or are concerned that your former partner will sell or transfer the property’s title without your consent. Your family lawyer will be able to help you get a court order to prevent the matrimonial home from being sold in these circumstances.
If you are filing for sole occupancy of the matrimonial home or seeking any other financial order, bear in mind that you will need to submit the claim to the Family Court one year from the date of divorce. While this is the set cut-off time, you do not have to be legally divorced to file your application, and it can be done the day after you separate.
Special rules for the matrimonial home
As mentioned previously, there are several considerations a Court is likely to undertake when deciding who will be granted the matrimonial home. One of the most special factors is post-separation conduct. This refers to whether one party has asked for sole occupancy of the home, regardless of whether they are listed on the property’s title or continued to live in the property during the separation.
Exclusive occupancy claims are assessed on matters including how the party contributed to the property and the children’s best interest. These contributions are not limited to financial, as the Court may also consider non-financial contributions, such as gardening, decorating, cleaning and other maintenance or renovations.
The matrimonial home and property division
Aside from making arrangements for who will claim the matrimonial home, several other property divisions must take place. Under Family Law, property can refer to any financial asset you and your spouse have, including but not limited to:
- Cash or personal savings
- Shares, stocks or bonds
- Land, property or other buildings, either in Australia or overseas
- Personal property, such as cars, jewellery, antiques
- Investments or trusts within a business
Aside from these financial arrangements, grounds for spousal maintenance and child support will also need to be determined. Like anything involving personal finances and property, consulting with a qualified family lawyer can help safeguard your assets and rights during your divorce.
Doolan Wagner Family Lawyers — trusted advice to protect the matrimonial home during a divorce
From where you raised your children to where you built lifelong memories, the matrimonial home is more than just a financial asset. And if you believe you are entitled to keep the matrimonial home during your divorce, hiring an experienced family lawyer is non-negotiable. Doolan Wagner Family Lawyers is a full-circle Sydney law firm specialising in all branches of Family Law, including dividing assets between separating couples.
Our team of family lawyers can provide knowledgeable advice on how you can secure your assets, whether filing or sole occupancy or changing the locks on the matrimonial home, all while staying out of the courtroom. Have your case taken care of by one of our talented family lawyers by getting in touch today.
