Category: My Blog

Divorce and Home Ownership

Divorce can bring up a lot of questions. One of the main ones is “what about the house?” A house is not only typically a couple’s largest asset, but it’s also often the asset with the most emotional attachment. Your spouse and you decided that this was where you were going to spend the happiest of times – raising children and building a life. This emotional attachment can make it impossible to let go of and assign a value to. The personal importance of a house can make it the lynchpin of property division negotiations. Here are some common ways the family home is settled in a divorce.

Put the House Up for Sale

If neither spouse wants to stay in the home, or neither spouse can afford to stay in the home, you might want to put it on the market to try to get the best price possible. This can be hard for families because of the moving out process – everything can feel very final and “done.” But often times it’s easier to have the money from the sale than a large asset that reminds them of their divorce.

Buyout

A house buyout is when a spouse releases hers or his interest in the house – this is in exchange for cash or the promise of cash to be paid in the future. This often happens in instances where the primary caregiver for the children want to stay in the house with the children. There are a lot of intricacies with a buyout – you’ll want to work with a negotiator that can help advise you on this if you feel it’s the best option.

Co-Ownership

Sometimes a sale nor a buyout will work for your situation. In this case it might be best to consider co-ownership for a predetermined amount of time. This will need to be clearly defined. Essentially, this will redefine your relationship with your spouse – you will now have a business relationship of “co-owners” of the property.

As family law is so widely used in society, clients can accidentally spread common myths about family law that simply aren’t true. This article aims to set you straight with some truth-talking when it comes to family law and family lawyers in Melbourne.

Truth 1 – Waiting 12 Months Before Divorce

Any family lawyers in Melbourne will be able to tell you that couples need to wait a minimum of 12 months after separating before they can file for an application for divorce. This 12-month period must demonstrate an irretrievable marriage breakdown. The period can involve reconciliations of up to 3 months before the separation period is reset. If there are reconciliations, the total time of separation will include periods before and after brief reconciliations.

Truth 2 – De Facto Definition

There’s a common myth that couples must live together for two years before they’re considered de facto. But the best family lawyers in Melbourne will be able to tell you that cohabitation is only one criterion for de facto status. Other factors that can impact this can include whether they have children if they share their finances, how they present their relationship to other people, and whether it’s a sexual relationship. Sometimes a couple could be thought of as de facto even if they live together for less than half of the year.

Truth 3 – Super is a Property of Marriage

Leading family lawyers in Melbourne can tell you that since 2002, the Family Court treats superannuation as a “property of marriage”. This means that couples can split up their super entitlements as part of their property settlement. There are some exceptions to this, and splitting super does not turn it into immediate cash, either. Splitting super is not necessary, but it can be used to offset the division of other assets.

Truth 4 – No Parent Rights

Parents do not have rights in relation to their children, only responsibilities. Terms of the Family Law Act 1975 specify a child’s right to have a meaningful relationship with both parents. The only time when this is waived is when there are concerns about the safety of the child. Parenting matters are always worked at according to what is best for the child, not according to any right of a parent.

Truth 5 – Court Proceedings Unlikely

Family lawyers in Melbourne may advise you that not many cases relating to family law will reach trial. This is because Family Court prefers mediation over trial due to delays in being listed for trial and also because of the large cost of legal proceedings.

Truth 6 – Children’s Issues Demand Mediation

Couples must attempt mediation before engaging family lawyers to pursue Family Court proceedings about children’s issues. If mediation is not possible or practical, or if there is violence or a risk to the children’s welfare, then this expectation is waived.  

To gain a more comprehensive understanding of family law, consult with suitably qualified and experienced family lawyers in Melbourne.