Our home, and other property

This article is part of our demystifying separation series. For more updates, click here.

 

Who will remain in the family home?

Separation has a range of practical consequences, one of which is significant change to your living arrangements. Couples often remain living together right up until they formally separate. Then what? You will have to decide who keeps the home in the long term when deciding how to divide your property. It is also important to make a plan for your living arrangements after separation, as early as possible.

• Children’s interests should be given priority when deciding who should remain in the home. Often the partner who has primary responsibility for children will have priority in most circumstances to remain in the family home, so the children’s routines and living arrangements are not negatively affected.


• If one of you is moving out, you should consider practical issues such as transport. If you have one vehicle between you, how will you share it? If you have two vehicles, who will use which and how will the running costs be met?


• Whilst matters are being worked out between you, you can consider temporarily remaining in the family home together. This will not be possible in all situations, but if the circumstances deem it appropriate, it may help to reduce the costs and practical pitfalls to separation (such as having to find rental accommodation and moving costs).


• You can apply to Court if you cannot agree. The Court can determine if one partner should personally occupy the family home, or other premises you own, for a period after separation. The Court will consider the needs of the parties and what is just and fair in the circumstances.

How will we split our property?

The Law says any property accumulated during a relationship of more than three years belongs to both partners of the relationship when they separate. This means the property you have accumulated whilst you have been with your partner belongs to both of you equally, regardless of who purchased the item or who’s name it is registered under. There are some exceptions to this, which we discuss in our next article in the series.

• Property you owned before you began your relationship will usually remain your separate property.


• “Property” includes real estate and much more including:
   
  • all the household chattels (for example furniture, vehicles, family pets, artwork, televisions and sound systems, artwork, décor, etc)
     
  • Income, money in savings accounts and other investments such as shares;
     
  • Other sources of income, for example shares in the company
     
  • Vehicles



• The presumption is that you will split your property evenly between you when you separate unless any adjustments are required where one partner needs financial assistance after separation.


• If you are considering separation, you can prepare by making a list of the items you own and bank accounts you have. Gather as much information as you can (e.g., bank statements, existing valuations, trust deeds, etc) and make a note and talk to your lawyer if there are items your partner owns or is in control of. Working out exactly what property you have together in the early stages will make it easier to divide that property to conclude separation.

It is recommended that when you separate you and your partner create a written agreement which clearly sets out the property each of you will keep. You will need a lawyer to do this (it is a legal requirement for the agreement to be valid). More information is provided about about separation agreements in our next article in the series.

 

Do I need to get a valuation of the family home or other assets?

Part of the process for dividing your property is establishing what property there is, and how much it is all worth. Once that property has been identified, you can agree with your ex-partner who will keep what.

• Appreciating the value of property is an important aspect of dividing it. This ensures that you know you are getting a fair deal when coming to an agreement.


• For example, if your ex-partner keeps the family home, you may be compensated by getting a greater share of the remaining property, or by being “bought out” of your half share of the home by your ex-partner. To know how much you need to be compensated for, you will need to get a valuation of the home.


• Other items such as vehicles, or significant assets (for example, artwork, antique furniture, jewelry, or shares in a company) may also need to be valued to establish what a fair division of those items will be.


• Valuations also protect you from the agreement being challenged in future if your partner becomes unhappy with their share, or thinks they should have received more. If your partner does not fully appreciate the value of property when the agreement is signed, and it transpires that they have received a less generous share than you, there is a risk they will apply to Court to have the agreement overturned. This can be a costly exercise for all involved. Obtaining a full understanding of your property and its value will prevent arguments about the agreement’s fairness later down the track.

If you need tailored legal advice regarding any of the matters we discuss in these articles, get in contact with a member of our team: Ruth Williams.