Once a couple separates there is no set rule as to who has to move out of the house, especially if the house is jointly owned. Often this can be mutually decided by both parties and is usually influenced by factors such as if there are any children living in the house, who the primary caregiver of the children is and the reason for separation.
If neither party wishes to leave, both parties may remain in the property until the property settlement. In the event of an intervention order being issued, sometimes the Court can order the sole use or occupation of the family home, however this is extremely rare.
Rights of De Facto or Same Sex relationships
If you’ve been in a relationship for more than two years and separated after March 2009, the Courts now have jurisdiction in many de facto and same sex relationship breakdowns to make property orders, as they can with married couples.
What is defined as property in a divorce settlement?
Property which will be dealt with during a divorce property settlement include:
•Any real property e.g. the family home
•Cars, boats, caravans and other vehicles
•Businesses assets (current and fixed assets)
•Jewellery, furniture, paintings, artworks
•Financial assets such as cash in bank, fixed deposit funds, shares and superannuation.
Dividing the Property
The Family Law Act requires a just and equitable division of assets. In many cases parties are able to come to a decision between them as to how the property will be divided. It is recommended that you seek the advice of a Family Lawyer in the event of requiring a property settlement.
If you and your ex-partner are unable to agree, the Court will determine how to divide your property and will consider things like:
•Current and past incomes
•The assets that each party brought to the relationship
•Health and age
The process of a divorce property settlement
There are four fundamental stages in the division of property after divorce:
•Identification of assets and liabilities such as Super, Trusts and companies
•Assessment of the contribution made by each party to the assets
•Future needs of each party, income earning potential, care of children, health, age, education
•An assessment of whether the proposed overall settlement is fair
Reaching a property divorce settlement
A property settlement can be entered into any time prior to the finalisation of the divorce. Once a divorce has been granted, often called a Decree Absolute, the parties only have 12 months from that time to make an application for property settlement.
How do we choose the right real estate agent?
One of the most important elements when choosing the real estate agent to represent you is ‘trust’.
An agent offering you the lowest commission rate and/or the highest appraisal is not necessarily the best option. To make your selection easier, take the advice of the professionals:
-Ask your colleagues, family, friends and neighbours if they are able to refer you to a proactive agent
-If you are unable to receive referrals, search the internet for reviews from past clients of local agents
-When you interview your potential agent, ask the following questions:
- How many properties did you sell last year and last month?
- How many buyers are you working with at the moment?
- Can you provide me with an example of your marketing campaign?
- How many salespeople do you have in your team?
- What charges will I incur if the house doesn't sell?
- If I am not happy with your performance, how do I cancel our agreement?
- Can you provide me with a list of your past clients and testimonials?
- How often will I receive feedback on the progress of my sale?
- Can you provide me with 3 recent sales in the area, similar to my property, and what they sold for?
- What is the average house price in my area?
- Do you have similar properties to mine currently for sale?