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Commercial Employment Law Estate Planning Family General

Your Rights When Moving Out

05.05.2022

Will I lose my rights in family law if I move out?

Whether you are married or de facto and either of you have property, if you separate, a property settlement is going to be on the cards. If there’s a separation, one of you will more than likely move out as a result.

If you are the one to move out, will you also be walking away from any claim to the home in a property settlement?

Possession is 9/10ths of the law

This is one of the many myths in family law. Just because you have moved out, does not mean you relinquish any claim to that property in a property settlement. Just in the same way that if you move out, it doesn’t mean the mortgage repayments stop coming. Where the family home is now occupied by one person, it doesn’t mean that’s where the home will end up at the end of a property settlement. It will all depend on the assessments made in the “four step process”, so it is basically a case by case basis.

However, if one party in particular wants to remain in the home then adjustments will need to be made to balance out the property distribution. For example, if the property is significantly more valuable than the other assets in the property pool then this is where cash payouts or some other form of compensation may be required.

If you are one of the registered owners, then the title of the property will have to be dealt with. If you aren’t a registered owner, then the property still may have to be dealt with because it will all come under the umbrella of ‘property’ in family law.

what if you aren’t a registered owner?

If you aren’t registered as the owner, or one of the owners on the property, then you will have what is called an equitable interest. You still may have rights even after a separation has occurred despite not having a legal interest in the property. It is important that you seek legal advice as to your position and the nature of your rights and interests in any property so that it can be distributed appropriately between you and your ex-spouse. You could even have an interest in property that you didn’t even know about, which is why it is important you seek initial legal advice so you don’t prejudice your position in the long run.

Similarly, if you are the party that remains in the property after the other has moved out, it is important that you obtain legal advice to ensure your interest in the property is protected so the property you own, remains your own.

The fundamental process of a property settlement is to ensure both parties are protected from liabilities, have full ownership of assets and the distribution of property is fair and reasonable. This provides certainty and security to both parties involved so they can move on financially without the worry of a further claim against their property.

If you have any doubts or concerns after you have separated from your spouse, seeking legal advice will help you find out what your rights and entitlements are as well as what common pitfalls to look out for, which you may not have even considered. Please contact our family law team today to discuss your options.

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