Sarah Callaghan explains for us
A question often asked by people going through a separation or divorce is whether they should move out of the matrimonial home.
It is not necessary for former spouses to stop living together after deciding to separate. Some people may choose to continue living separated under the one roof for quite some time.
Unfortunately this does not work for the majority of separated couples. Many people report that creating physical distance and living independently makes the separation process easier.
Both parties are legally entitled to live in the family home. One party cannot force the other to leave. Ordinarily one party will elect to leave the home to alleviate what is often a distressing situation
It is important to consider all of the options available to you when deciding whether to stay or leave the matrimonial home. If possible, do not move out until you have obtained legal advice.
Advantages to remaining in the matrimonial home
There are a number of advantages to remaining in the matrimonial home. The main advantage being that if you are the primary carer of the children, this minimises the disruption to the children of having to move out of the family home.
Family law matters can often be acrimonious and bitterly contested in which case it may take years to be finalised. If you are able to remain living in the matrimonial home, this stability and consistency during a difficult time can be highly advantageous.
However every situation is different and remaining in the matrimonial home is not always an option especially if there has been instances of family violence. In circumstances where there has been family violence the situation is treated differently.
You should contact emergency services or the police if you or your children are at risk of being harmed.
It is also important to approach the issue from a practical sense and consider what your financial obligations are with respect to the matrimonial home and whether you can afford to rent elsewhere.
If both of you are the registered proprietors of the property, then it is likely that the home loan is held in joint names. The bank will expect the home loan to be paid, whether by both or either of you. You are both jointly and separately responsible for the home loan. If you default in your repayments of the home loan then this can have serious consequences if you apply for a loan in the future.
Most commonly the person that remains in the matrimonial home will pay the mortgage and expenses for the home, pending the sale or transfer of the property. Your former partner may be unable to afford to pay rent and living expenses as well as contribute to expenses for the matrimonial home.
This is not always the case. In a situation where one person did not work and relied financially on their partner’s salary, it is reasonable to expect that the person earning significantly more would contribute towards the mortgage regardless of whether or not they are residing there.
It is advisable to obtain legal advice before any decisions are made regarding the matrimonial home. Contact one of our experienced family lawyers today to discuss your legal matter and safeguard your major asset.