How to Keep the Family Home in a Separation: Things to Consider
When couples separate, one of the most pressing questions is what will happen to the family home. For many people, the house is not only their largest financial asset but also a place filled with memories, stability, and security. This is especially true if children are involved. Parents often want to ensure that their kids remain in a familiar environment, close to school, friends, and their community.
At Craigieburn Lawyers, we regularly assist clients who ask: “Can I keep the family home after separation?” The answer is not always straightforward. Whether you can stay in the home depends on your personal circumstances, financial position, and the overall property settlement.
In this article, our family lawyer in Craigieburn explain what you need to know if you’re hoping to keep your home after separation, and what practical and legal factors you should carefully consider.
1. Understanding How Property Settlements Work
When a relationship ends, whether a marriage or a de facto relationship - all assets and debts owned by either party are considered as part of the property settlement. Importantly, it doesn’t matter whose name the property is in. If the house is solely in your partner’s name, it will still be included in the asset pool.
The Family Court and Federal Circuit Court apply a four-step process when deciding on property settlements:
Identify and value the asset pool - this includes the home, cars, savings, superannuation, businesses, and debts.
Assess contributions - both financial contributions (such as income or paying the mortgage) and non-financial contributions (like homemaking and caring for children).
Consider future needs for example, who will be the primary carer of the children, the income-earning capacity of each party, and any health concerns.
Determine a just and equitable outcome the division must be fair in the circumstances.
This process means that the family home is rarely considered in isolation. Instead, it is viewed as part of the bigger picture.
2. Options for Keeping the Family Home
If you want to remain in the family home, there are generally a few pathways to achieve this:
a) Buying Out Your Partner’s Share
This is the most common option. You would effectively pay your partner the value of their share of the property, either through cash, refinancing, or a combination of both. For example, if the home is worth $700,000 and the mortgage is $200,000, the equity is $500,000. If you agree to a 50/50 split, you would need to pay your partner $250,000 and take over the mortgage in your name.
b) Offsetting with Other Assets
Sometimes, you may not need to refinance if you can “trade off” other assets. For example, your partner may keep a larger share of superannuation or investments, while you keep the home. This can be an effective strategy if cash flow is limited but you have other valuable assets.
c) Keeping the Home Temporarily
In some cases, one party may remain in the home for a set period (often until children reach a certain age), after which the property will be sold, and proceeds divided. This arrangement can provide stability for children in the short term.
d) Selling the Home
If neither party can afford to buy out the other or offset with assets, the home may need to be sold, with the proceeds divided as part of the property settlement. While this can be an emotional outcome, it is often the most practical and financially viable option.
3. Can You Afford to Keep the Home?
One of the most important questions is whether it’s financially realistic for you to keep the home. Many people are emotionally attached to the house and want to stay, but it’s vital to be honest about affordability. Ask yourself:
Can you service the mortgage repayments on your own?
Do you have the income to cover ongoing expenses like council rates, utilities, maintenance, and insurance?
Will you need to take on additional debt to buy out your partner’s share?
Does keeping the home fit with your long-term financial goals, or will it leave you “asset rich but cash poor”?
At Craigieburn Lawyers, we often suggest clients speak with a financial advisor or mortgage broker early on, so they fully understand their borrowing capacity and options before making decisions about the home.
4. How Parenting Arrangements Can Influence the Home
If you have children, their best interests are a central consideration in family law. Sometimes, courts and negotiating parties will prioritise allowing the primary caregiver and children to remain in the home for stability, particularly in the short term.
For example, if you are the parent with majority care of young children, this may strengthen your case to remain in the property. However, this will always need to be balanced with the overall fairness of the property settlement.
5. Legal Pathways: Consent Orders and Court Decisions
Even if you and your ex-partner reach an agreement about the home, it’s important to formalise this legally. There are two main ways to do this:
Consent Orders These are orders approved by the Family Court that formalise an agreement without needing to attend court. They provide legal protection and certainty.
Binding Financial Agreements (BFAs) – These are private agreements prepared by lawyers that set out how property will be divided.
If you cannot reach an agreement, the court may need to decide what happens to the home. This can be stressful and costly, which is why obtaining early advice from a family lawyer in Craigieburn is so important.
6. Practical Steps If You Want to Keep the Family Home
If your goal is to remain in the property, here are some steps to take early in the separation process:
Gather financial documents – mortgage statements, property valuations, bank accounts, superannuation balances, and other financial records.
Get a property valuation knowing the true market value of the home helps when negotiating a fair settlement.
Check your borrowing capacity speak with a bank or broker about whether you can refinance into your name.
Seek legal advice early a local Craigieburn lawyer can outline your options and protect your interests.
Focus on negotiation court should be the last resort. Many cases can be resolved through negotiation or mediation, saving you time, money, and stress.
7. Emotional vs. Financial Considerations
It’s natural to want to keep the home because it feels safe and familiar. However, emotions should not override financial reality. Sometimes, selling the property and moving forward with a fresh start is the healthier option. At Craigieburn Lawyers, we help clients weigh up both the emotional and practical sides of this decision so they can make informed choices.
Final Thoughts
Keeping the family home after separation is possible, but it requires careful planning, financial capacity, and the right legal guidance. Whether through buying out your partner, offsetting with assets, or negotiating consent orders, there are different pathways available.
Every separation is unique, and what works for one family may not work for another. That’s why it’s essential to get personalised advice from an experienced Craigieburn family lawyer who understands your situation and can guide you through the process.
At Craigieburn Lawyers, we are committed to helping clients protect what matters most. If you are separating and want to explore your options for keeping the family home, contact our team today for a confidential consultation.
Contact Craigieburn Lawyers today to speak with our family law team and get practical, local advice tailored to your needs.