Family Law Financial disputes– who gets to keep the family home?11-November-2022 Family Law By Simone Green
Ending a marriage or de facto relationship brings many challenges, not the least of which is deciding on who gets what. In many cases, separating couples can agree on how to separate their assets but what happens when both people want to keep the same thing? Streeterlaw’s Accredited Specialist Family Lawyer Simone Green explores this hotly contentious family law issue.
Retaining the family home can be advantageous in a property division for many reasons including the convenience of staying put, providing stability for the children, not having to pay stamp duty on a new purchase and of course the sentimentality factor.
Conversely, the other partner may feel disadvantaged by the idea that they will need to move out, pay stamp duty on any new purchase or outlays on rental bond, moving and set up costs. There may also be a fear of the other gaining some more nefarious financial advantage such as selling the undervalued property at a massive profit, or in some cases the fact that the other person wants it, simply makes it more attractive to retain it themselves.
Judge Turnbull of The Federal Circuit and Family Court of Australia (‘the Court’) recently decided the case of Farnham  FedCFamC2F 83 involving a battle for the family home. Of note in the Farnham case was that initially both parties had agreed to sell the home and reached Heads of Agreement regarding the sale, upon which the husband later reneged. The husband actively interfered with the sale of the home by rejecting two offers to purchase the home (above the valuation price) and called the purchasers advising the property was no longer for sale. Both parties then made competing applications to retain the home themselves and if they could not, that the home would be sold.
So how did the Court decide who should get the home? Judge Turnbull considered feasibility factors outlined in the relevant case authorities alongside the usual considerations outlined in the Family Law Act which apply to property division. Those factors include (not exhaustive):
- The impact on the party and any children, of losing their place of residence;
- For the purpose of parenting orders, whether the children would benefit from either remaining in, or spending time with a parent in the home which is a familiar setting.
- The impact of the balance of the property division under section 79(4) or section 90SM(4) of the Family Law Act (essentially how that effects the overall percentage split when other assets and superannuation are taken into consideration if the home is kept by one party);
- The borrowing capacity of each party contending to retain the home;
- The location of the home in proximity to children’s schools, family members and friends (relevant to parenting orders);
- Co-ownership of the home with other parties;
- Zoning changes which may alter the use of the land;
- Costs of alternate housing.
Ultimately, the Court has discretionary powers to make orders altering the property interests of separated couples. In the case of Farnham, Judge Turnbull made a very practical order that the home be sold by auction and each party be permitted to bid for the home at that auction.
When considering the distribution of assets, liabilities and superannuation following the breakdown of your relationship, seek early advice from an Accredited Specialist in Family Law. Obtaining specialist family law advice from Streeterlaw can save you thousands of dollars in the long run and keep you out of Court, allowing you to rebuild your life faster and with dignity. Call and speak to our friendly Family Law team today on 1300 293 593 and let us help you to resolve your dispute.
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