The breakdown of a marital or de facto relationship generally causes deep distress and occasionally muddled thinking. If you are considering a separation and are questioning whether you should move out of the house, it may be helpful to keep three guiding principles in mind:
- If there has been domestic violence or a threat of domestic violence, do whatever you need to do to protect yourself and your children. Call the police first, if necessary, then call your family lawyer.
- If you move out with your children you should obtain a court order for temporary custody as soon as possible to avoid accusations of kidnapping. Property and parenting arrangements can be worked out after you and your family are safe.
- If the situation is not violent, call your solicitor first. A decision to move out of the family home is not dispositive of any financial or parenting issues, but there is some lingering truth to the aphorism, “if you want the house, don’t leave the house; if you want the kids, don’t leave the kids.” It is best to negotiate as much as possible before either party departs.
Separation and divorce
In family law, under the Family Law Act (1975), parties must establish that a marriage is irretrievably broken before a court will grant a divorce. That generally requires a period of separation of at least one year. Therefore, establishing the date that the separation began can be crucial. It can be relatively simple when one party moves out of the house. For financial or parenting reasons, however, some couples choose to separate while sharing the same home. It may take some extra documentation in that event, so that the date of a separation can be established.
If there are children of the relationship, it will be necessary to formalize custody, visitation and support matters. Courts treat the rights of the child, including the right to a sense of stability, as paramount. Where one parent is the primary carer, it is often best for that parent to remain in the house with the children, while other matters are being sorted through.
The situation may be tense and uncomfortable for the adults. But unless it is truly detrimental to the children, the parent who ultimately moves out, should not do so until his or her ability to have meaningful contact with them is legally protected. If the parents cannot reach an agreement, the moving parent may ask the court to establish a shared parenting schedule.
Ongoing financial obligations
The parties in a relationship frequently share financial obligations. Before either party moves out of the family home, it is essential to establish how those obligations will be handled during the separation. How will mortgage and insurance payments be split? Are both parties on the deed and note? Can the moving party afford both the cost of new housing and a portion of the cost of the residence left behind? What about utilities, credit cards or the ongoing cost of upkeep of the home? Providing for the last item may be especially important in the event it must ultimately be sold. The burden of ongoing financial obligations is the reason many couples choose to separate under the same roof.
The family home is often a couple’s most valuable asset, and the decision to move out can feel dangerously like abandoning it. It need not. In NSW, all marital property is to be divided equitably, considering each party’s needs and contributions. The party who stays in the house will not necessarily get to keep it. Where both parties are owners, it may be necessary for one to buy out the other’s interest, trade an interest in one marital asset for another, or it may be necessary to sell the property. If property settlement negotiations are well underway before anyone moves out, the ultimate agreement may be easier to work out.
The moving party should be sure to take an inventory of all physical property left behind. Everything personally necessary should be also taken along at the time of the move, since re-entering the house may be difficult.
Should you move out of your family home? This is a complicated issue that will impact the physical, emotional and financial well-being of all involved. At Owen Hodge Lawyers, we would like to help you make the kind of sound decision that will ultimately help you get on with your life. Learn more about divorce law and please get in touch with one of our family law solicitors at 1800 770 780 or via email at [email protected].