Separation - Rights to Stay in Home?

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New Member
4 May 2015
What are rights to staying in my house as my partner has decided to leave (separation)? We have 2 kids and a mortgage. He thinks he would need to sell it. Does he have the right to do that?

I’m not sure what to do as he has written a lot of terms that he wants me to agree to. As I have not, it feels like I have just been told to.


Hi Amanda Joy,

Without a court order, your ex cannot force you to leave a home you own either in your own name or jointly. However its a different situation if you are in a rental property.

You can be legally separated but live under the same roof as your ex, and your separation time for divorce proceedings can start running.

If you need to, get legal advice. Don't just agree to the terms he is proposing because he is pressuring you or to get it over with. It may impact your life for many years to come. Your ex can't make you do anything or give up anything and is not "entitled" to anything per se at law. Property settlements (before they get to the court) are completely negotiable between the parties. If you can't afford any legal assistance - just think through what you want and only agree to what you want. Negotiate whatever other terms you require.


Well-Known Member
23 July 2014
If you are unable to reach agreement, there are a few things you can do.

First, consider filing an application to the court to have a caveat placed on the house until an agreement can be reached. This will stop either party from disposing of the property in the meantime.

If you've already done a family dispute resolution conference, and have been unable to reach an agreement (which is perfectly okay), then you should receive a s60i certificate that will enable you to file an initiating application for a property settlement decided by the court.

Court follows a four-step process in property settlements.
1. What's the total value of the shared asset pool?
2. What's the financial and non-financial contribution of each party?
3. What are the future needs of the parties?
4. Is it fair and equitable?

Other than that, there is no formula for property settlements, and it's impossible to predict an outcome. The court might order you to sell the house, but it also might not. It might order that whoever continues living there pay out a certain amount to the other party and take ownership of the mortgage.

In terms of rights, you will be entitled to a percentage of the shared asset pool, and many people find the best way to work it out is start at 50/50 and then apply the four-step process the court follows. If you've got care of the kids and have reduced employability due to child-rearing, then you might be entitled to a bit more to help with your future needs.

Anyway, hope this helps in some way. Summarily, you don't have to sell the house and you can apply for court arbitration if conciliation failed. Don't feel pressured to agree if you don't agree, but be prepared to make concessions and find a middle ground so that you have the best chance of reaching agreement outside of court. After all, the cost of a property settlement decided by the court will take a significant portion of the settlement in legal fees, so it's more financially rewarding to try and avoid it if you can.