If you're wondering what your marital home rights are, then you've come to the right blog post.
It's natural for a newly we couple to dream of owning their house. In legal terms, we call this the marital home, a house that a married couple has bought. Like any other house, it has properties that include assets and debts for both partners. Once a couple is married, their properties and assets are shared.
However, once they separate, they also have entitlements to what they will receive. So, who gets what? This is a pretty common question that arises during separation or divorce, more so, a catalyst for disputes.
Going through a separation and not knowing your marital home rights can greatly influence your future, which is why these matters need to be handled properly. For example, not being aware of marital home rights may influence the parties' standard of living. Having some knowledge regarding your marital home rights may assist you when going through such cases.
Who Stays in the Marital Home?
This is an important question to answer when a married couple lives together under one roof. Naturally, a couple who jointly own the marital home has the equal right to live there. However, a family violence order will overrule this, which will separate the violent partner from the other.
In a normal divorce setting, one party will have to move out. After all, it would be awkward if both parties still lived together even after separation. Both parties remain responsible for the home's expenses even after separation, like rent and mortgage. Therefore, it's crucial for ex-couples to agree on how these costs will be divided and paid.
Property Settlement: How Does It Work?
A party in a divorce can impose their marital home rights during property settlement. This is the process of dividing property after divorce. Will one party gain more than the other? Is it a fair share? Whatever the result is, both couples can agree with each other without family court interference.
However, they may also use post-nuptial agreements or pre-nuptial agreements. These binding agreements prevent one party from gaining rights over a certain property or properties after a divorce. Pre-nuptial agreements are made before marriage, while post-nuptial agreements are made after a divorce.
What About de Facto Couples?
Under Australian family law, couples (including same-sex couples) who are living on a genuine domestic basis with each other are said to have a de facto relationship. It's a common misconception that de facto couples don't have as many rights compared to married couples.
This relationship depends on the particular circumstances of a couple, so the law has formulated a set of factors to determine whether a couple is in a de facto relationship. These include:
- Whether the couple is married
- How long the couple has been together in the relationship
- If the relationship was sexual in nature
- There is codependency
- There is property ownership
- Care and child support for children
- The degree of a mutual commitment to a shared life
Each case is unique and examined individually, and specific conditions of the relationship are taken into consideration. Polygamous relationships are also considered, meaning that a de facto relationship does not necessarily have to be mutually exclusive.
Several states and territories allow you to register a de facto relationship through the state's registry of marriages, births, and deaths. They can provide you with a certificate that can be used as proof of the length of the de facto relationship. For example, in NSW, de facto relationships can be registered online.
Cohabitation Agreements And Disputes
Unmarried or cohabiting partners, such as de facto couples who live under the same roof, have the option of making cohabitation agreements. This is also a type of binding financial agreement that can help them protect their marital home rights as a couple, while at the same time giving security to their individual assets.
Unmarried couples may face instances of breaking up, especially when the relationship is not legally registered. Therefore, an advisable way to avoid further conflicts is to plan ahead.
By investing in cohabitation agreements, unmarried couples can have similar rights granted to married couples. Such agreements or contracts are limited to financial, custody, and property-related matters.
Court Decisions On Marital Home Rights
Family law courts take into consideration various factors when dealing with divorced couples. What the Court will look at:
- Each party's means and future needs
- The needs of their children
- Interests of their children (which follow the conditions of Section 60CC of the Family Law Act 1975)
- The conduct of one party if they justify the other party that asks for sole occupancy
- If either of the parties displays improper behaviour, like intimidating or manipulating the other party
- If one of the parties can be housed elsewhere, given that they have adequate needs in that housing
- Each party's direct financial contributions and indirect financial contributions/non-financial contributions
- Who will it be less convenient for to live away from the marital home
Both partners must disclose all relevant financial information about their separation if they want a proper resolution. Failure to do so will lead to disagreements. In such cases, seeking mediation from an experienced family lawyer or approaching the court are the options.
Marital Home Rights: Do I Have To Register Property?
A scenario that can happen to you when not registering your property under your name is that your spouse can sell or mortgage the house without your consent and knowledge. To prevent this, it is only essential to register your home rights on legal documents, so other individuals and organisations like Land Registries and banks who are interested in the property will know you have legal rights to it.
To check a property's registration, you can look at the following:
1. Registered Property: This means that the Land Registry holds a record of who owns the property. For queries about owning a property, you may contact the Land Registry for an official copy of the property.
2. Unregistered Property: There are records of properties in the Land Registry, but they are kept in separate documents. These are called title deeds. Title deeds show who owns the property and are normally held by a mortgage provider. If you don't have a mortgage, the title deed may be with the owner or a solicitor.
Failure to register may lead to you needing to leave the property, and even restrict you from making claims for finances during the divorce. Your partner will be informed if you have registered your home rights, and the land registries will not fail to disclose this information to them.
They can put the application on hold for a week should you wish to withdraw or reconsider your application. If the family home is only registered to you, you alone will be informed. However, your spouse may find out about it by making inquiries and searches with the Land Charges Department.
Marital Home Rights: FAQs
| Q: If I left my marital home, can I still have a claim
towards it? A: Yes, if one partner leaves the marital home following divorce or separation, they are still entitled to receive a portion of the home during property settlement procedures. This will depend on how property settlement takes place. In amicable divorce cases, both parties mutually agree on how the division of assets should take place. Notably, to be prudent, it is advisable to create binding financial agreements before or during the relationship to ensure that no conflicts take place during property settlement. |
| Q: Does one person have to leave the house after
divorce or separation? A: Unless a court order has been made that specifies that one person has to leave the house, nobody can be forced to leave the house. Generally, such matters are settled with the help of lawyers who negotiate, mediate, and facilitate both parties to make agreements. |
| Q: The court can solve my divorce matter faster anyway,
so why do I have to go to mediation? A: The court is the one who actually recommends a divorced couple to attempt mediation first for property or parenting matters. Only then will they accept a divorce case if both parties fail to reconcile or come to an agreement about their family law matter. |
Know Your Marital Home Rights With Us
Divorce can get messy without proper guidance or basic legal knowledge. Next thing you know, your one nasty comment at your ex can land you in a lengthy and costly court procedure. We understand that separation can get on some people's nerves, especially if their ex is being unreasonable or just flat out calling out lies.
Don't let it get to the point where you're already drowning in legal fees. At JB Solicitors, our team of expert family lawyers can provide assistance in securing your marital home rights. We only want the best and the most convenient financial or property orders that cater to their specific needs.
Let us assess your individual circumstances during mediation to discover a resolution that won't require court interference.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
