Should You Move Out of the Family Home After Separation?
When a relationship ends, one of the first practical questions is often: who should move out of the family home?
Living together may have become uncomfortable or unworkable, and leaving can seem like the simplest solution. But before packing your bags, it is worth understanding the potential financial and parenting implications.
In short: moving out does not, by itself, mean giving up your right to a share of the family home or other property. However, it can have practical consequences that are worth considering before you make the move.
Will Moving Out Affect Your Property Settlement?
Simply moving out does not mean your former partner automatically gets the house.
When property arrangements are determined after separation, the family law framework considers the parties’ assets and liabilities, their contributions, their current and future circumstances, and whether the overall outcome is just and equitable.
The family home will, if owned by one or both of the parties, remain part of the property pool regardless of who continues living there. The bigger issue is often the practical and financial impact of leaving. If there is a mortgage, you may still be liable for repayments even though you are also paying for somewhere else to live.
Before leaving, it is worth considering:
- who will pay the mortgage, rates and insurance;
- whether both parties can afford the proposed arrangement;
- how joint accounts and household expenses will be managed; and
- whether an interim financial agreement is needed.
What If You Have Children?
Where children are involved, the decision deserves additional thought.
Moving out does not automatically determine future parenting arrangements. Under Australian family law, the best interests of the child are the most important consideration when parenting decisions are made.
However, where each parent lives can affect school, routines, changeovers and the amount of time the children can practically spend with each parent. Before moving, consider:
- where the children will live;
- how they will spend time with each parent;
- whether moving further away will affect school or activities; and
- how changeovers and day-to-day routines will work.
Where possible and safe, having some clarity around the children’s immediate arrangements before either parent moves can help reduce uncertainty.
Do You Have to Move Out to Be Separated?
No.
Couples can be legally separated while continuing to live in the same home. This is known as separation under one roof.
For some couples, remaining in the home temporarily may make financial or parenting sense while longer-term arrangements are worked out.
If you are married and later apply for divorce, additional evidence may be required if part of the required 12-month separation period was spent living together under the same roof.
Safety Comes First
There is one important qualification to any advice about thinking carefully before leaving.
If you or your children are unsafe, safety should come first.
Where there are concerns about family violence, threats, coercive control or other abusive behaviour, urgent legal advice may be appropriate.
You should not remain in an unsafe home because you are worried that leaving will mean giving up your property rights.
Before You Move Out, Consider the Bigger Picture
There is no single answer to whether you should stay in or leave the family home after separation. Before making the decision, consider:
- Your safety and the safety of your children
- Your financial position and housing costs
- Mortgage and household expenses
- Parenting arrangements
- Access to personal belongings and financial information
- How the property may ultimately be dealt with as part of your settlement
Getting advice early can help you make the decision with a clearer understanding of your position rather than reacting to the immediate pressure of separation.
Frequently Asked Questions
If I move out, do I lose my share of the house?
No. Moving out does not, by itself, mean you lose your right to a share of the home or other property.
Can we be separated while still living together?
Yes. Couples can be separated while living under the same roof, although additional evidence may be required later if you apply for divorce and part of the 12-month separation period was spent living together.
Should I speak to a family lawyer before moving out?
Where possible, getting advice before making a major decision about the family home can help you understand the property, financial and parenting issues relevant to your circumstances.
If you are considering separation or are unsure whether you should move out of the family home, WMD Law’s experienced Family Law team can help you understand your options before you make the move. Please click here to contact us or call 9525 8688.
By Lisa O’Leary, Director & Accredited Family Law Specialist, WMD Law
