Dividing the Family Home and Mortgage During Separation: Know Your Rights and Responsibilities

When it comes to married couples, dividing their property during separation is completely different than for unmarried spouses. Unmarried spouses have no obligation to equally divide the value of everything that they own like married spouses do. This is an especially complicated area when it comes to dividing your home, as well as any mortgage debts that you may have. Separation is an emotional struggle for the most people, so having your spouse telling you that you’re the one who has to leave the house can make things even worse. In any case, you shouldn’t just give up and leave because you’re told to, not before you check your rights with your lawyer.

Here, we’ll list some of the rights and responsibilities of both spouses during separation, to give you a better insight into the whole process.

Rights to the Matrimonial Home

Married spouses each have a right to half of the value of their home, even if only one spouse is listed as the owner, or if one spouse bought the home before marriage. Furthermore, both spouses have equal rights to remain in the matrimonial home when the marriage ends. This means that you can’t be kicked out of your house just because you’re separating. That said, it’s in no one’s best interest to remain living in a toxic environment and wage a war versus your ex, so some common sense should come into consideration. If the spouses can’t agree on who should continue living in the house after separation, a court can make this decision for you based on:

  • The financial state of each spouse
  • If there are any written agreements about the house
  • If you have any children, what’s the best solution for them
  • If the spouses have any other places to live
  • If it’s an abusive relationship or there’s a history of domestic violence

Property Rights for Married Couples

Under property, we mean money, pensions, disability benefits, real estate or any other assets that the married couple has at the moment of separation.

All of the property that both spouses got during the marriage must be divided equally. If it can’t be divided one of the spouses may have to make an equalisation payment to the other. Calculating this payment can be difficult to do on your own, especially since there are different rules and exceptions. Also, if one of the spouses owns property that is worth more than the property the other one has, the ‘richer’ spouse must give half of the difference in value between the properties to the other spouse.

However, if a matrimonial home is sold before the separation, the spouse who owned it before marriage can add that value to the property they owned before the marriage. If the home isn’t sold, both spouses have the right to get half of the home, regardless of whose name is on the deed.

Unmarried Couples and Their Property Rights

When living together without marrying, which is something more and more people opt to do compared to a couple of decades ago, you don’t get the same rights as married couples. Your spouse’s property, by all means, remains their own and you don’t have any rights to claim them as yours.

There’s an exception to this if you and your actions directly made it possible for your spouse to get more property. In that case, family lawyers Sydney area recommend addressing the court in order to get some of that property.

Debts and Loans

Any debt that you accumulate in your own name remains your own after separating. This is true for both married and unmarried couples. Also, any debts that you accumulate together is the responsibility for both of you and you have to pay it in full.

Married couples will have their debt subtracted from the total amount of their property value, so calculating how to equally divide the property won’t be affected by it.

If your matrimonial home hasn’t been divided yet, you have no right to put it under mortgage without the consent of the other spouse. Also, it’s common in some relationships for one spouse to be running large debts in their partner’s name, even if they had no participation in it. This kind of behavior is seen by the law as economic abuse.

Final Words

A separation is a difficult period for most people, yet some of the proceedings that follow it can make it even more frustrating. It’s important to know your rights when it comes to joint property, especially when it comes to married couples. In any case, during separation, you shouldn’t just agree to whatever your partner’s offering you, at least not until you’ve taken professional advice. To avoid any kind of difficulties during a separation, most couples these days opt for a prenuptial agreement – in order to make the process of dividing property as quickly as possible when it comes to it.