Who Gets the House in a Divorce With Children? A Comprehensive Guide for Families in Australia
Divorce is a challenging time for any family, and one of the most pressing questions is often, “Who gets the house?” When children are involved, the stakes are even higher, as the decision about the family home can significantly impact their lives after separation.
Key Factors in Deciding Who Gets the House
Under Australian family law, there is no fixed formula for determining who gets the family home. Every situation is different and as mediators we cannot give legal advice. But what we can do is give you examples of what we see in our practice. What I have to mention though is that when you are dividing your asset and liabilities you are talking about an asset pool. Not just one asset. A lot of people just talk about the house while there is a lot more to it, superannuation, savings, debt and so much more. A lot of people start making agreements without understanding what they are doing and later on conflict arises because people made each other promises before they understood the process.
So my advice is. Make some sort term agreements so you both know what is happening in the next couple of months and then work out your asset split.
First get all the information together.
- Get all your assets valued
- Provide full and frank disclosure to each other, bank accounts,superannuation statements and anything else that each of you own, have including debts.
- Put it in a spreadsheet share it with each other and provide the evidence for where it comes from.
- Get legal advice based when you know what your asset pool is.
What the lawyers will look at and the court as well (hopefully you won’t get that far) is the following:
- Financial and non financial contributions throughout the relationship (like looking after children)
- Future earning capacity
- Where the kids live under the age of 18.
- And some other factors every situation is different so get individual advice.
There are creative options that people come up with in mediation but the most common options in relation to who gets the family home are the following:
- One of the parties buys the other party out. This can be either parent. You have to work out who can afford to buy the other party out, in other words is able to get finance from the bank or another source to buy the other party out and is able to pay that now higher mortgage on an ongoing basis.
- The house is sold and the parties agree who will get what % of the equity of the property and the rest of the asset pool.
- Both parents keep the house and do something called birdnesting. The parents move in and out of the home and the kid stay in the house. These arrangements can come with a lot of challenges and is often a short term solution and agreements are made about what will happen with the home after this period of bird nesting.
There are some factors that our clients think about when they decide why one parent might keep the house after the separation. These examples are just that, examples and designed to have you think about your situation, always make sure you get legal advice about your specific situation to make sure you get sound advice.
- What are the arrangements for the children? Do parents share the kids 50/50 or does one parent has most of the care of the children? If one parent cares for the children for most of the time that parent might stay in the home to provide stability for the children. Of course this has to be financially viable for both parents and often a timeframe of how long this will be the case is discussed if in the long run the house has to be sold for example.
- What is the financial situation? Often clients tell us that for example a friend got a car and house free of a mortgage out of their separation. That is a great story but you have to have a certain asset pool to be able to do this. Not everyone does. Some people have large asset pools, other people have to divide debt. Get the numbers together for your asset pool which does not just include the house but all your assets and liabilities. When you have done that get some legal advice so you can start thinking about realistic agreements that could work for your family.
- Both parents need to be able to live and provide for the children. You were a team beforehand but now you are separating. How is this going to work best so you both can get on your feet and are able to provide for the kids.
- Are there any other reasons for someone to want the family home. Maybe the house has been in their family for decades. Maybe they have done a lot of work to the home and are attached to the house for that reason? These are topics that can be discussed in mediation.
I tell my clients to run all scenarios for themselves before negotiating about it. Because if you are attached to just one idea it is hard to negotiate. And if you have worked through an option you do not like you can explain better why you do not like it and what your reasoning is for that.
The Legal Process in Australia
Property Settlement vs. Divorce
It’s important to note that property settlement is a separate process from divorce. You can finalise your property arrangements before or after your divorce order. Most people finalise their property arrangements before they file for divorce as you will only have a certain amount of time to work out your property settlement after you have filed your divorce.
Property settlement is not easy. It comes with lots of emotion and you will walk away with less then what you had as you have to share it with the other parent. I strongly advise you and your ex to work it out in mediation and not go to court.
Litigation can be stressful, expensive, and time-consuming. The court times are long and often I see people fight over amounts that are similar to what they are going to pay their lawyers anyway. Some people need court no doubt but if you can keep yourself out of the system please do so.
At Life Mediation, we guide families through property and parenting decisions with compassion and professionalism. Mediation helps you:
- Reduce conflict and stress.
- Maintain control over decisions, rather than leaving them to a judge.
- Focus on solutions that prioritise your children’s stability.
Practical Tips for Parents Navigating Housing Decisions
- Assess Financial Viability: Determine whether you can afford to maintain the family home, considering mortgage payments, maintenance, and ongoing living expenses.
- Understand the Impact on Children: Think about how changing homes or locations could affect your children’s schooling and routines.
- Consider Alternatives: If keeping the family home isn’t feasible, explore options such as selling the property and splitting the proceeds or one parent buying out the other’s share.
- Seek Professional Guidance: Work with a mediator and lawyer develop a fair and practical property settlement.
Why Choose Life Mediation?
At Life Mediation, we specialise in helping families navigate the complexities of property settlements and parenting arrangements with care and understanding. Our approach ensures that decisions prioritise your children’s needs while supporting both parents in moving forward positively. We have done this work for years and we can support you because of the experience that we have.
Our services are flexible, offering in-person, online, or phone sessions, so you can access support in a way that suits you. Whether you’re looking to stay out of court or need help understanding your options, we’re here to guide you every step of the way.
Take the Next Step
If you’re going through a divorce and wondering how to resolve property matters, including who gets the house, Life Mediation can help. Contact us today to book a consultation and take the first step towards a resolution that works for your family.
Contact Us:
📞 Phone: (08) 6219 3679
📍 Location: Perth, WA (in-person, online, and phone services available)