Should I Stay or Should I Go?

Figuring out if you should stay in your home after you separate.

The common tripe is that possession is 9/10ths of the law and that after you separate you should never leave the home, else run the risk of your partner using his/her occupancy against you to claim entitlement to the home.
The truth is that this is not how the law works. Under the Family Law Act 1975, moving out of the familial home will not, in and of itself, affect your entitlement to a share of the property. Rather, the Family Law Act 1975 requires parties to consider rights that you have accumulated to the property throughout the relationship; such as financial and non-financial contributions made, the future needs of the parties and the needs of any children of the relationship. At Ray’s Room, we suggest that you consider 3 factors when making the decision of whether or not to leave the familial home –

  1. If there is any domestic violence, or threat of domestic violence, make decisions based on the safety of yourself and any children involved. Involve the authorities and support services if this is required to ensure everyone’s safety.
  2. Seek the advice of your solicitor if the decision to move out is not a pressing/urgent issue. Many clients find reassurance in their solicitor’s advice.
  3. Consider the impacts staying or leaving the familial home will have on your post separation relationship. When we mediate at Ray’s Room, we ensure that clients are treated with the full fairness of the law, despite where they are living. We ensure that your assets are pooled and divided according to the Family Law Act which requires all agreements to be “just and equitable”. Clients who tell us they are living in their family home often describe incredibly tense moments where they are forced to live alongside the one person they are trying hardest to leave. This often leads to an increase in arguments and uncomfortable moments in the home – obviously this can have even further damaging ramifications to the relationship.

    Giving each other space often brings increased peace and calm to relationships which are otherwise marred by hostility. This becomes a much safer emotional place from which to negotiate in the future should family mediation (link) become an option. Our trained therapists (link) are also able to support people going through mediation in order to achieve the best outcomes possible. We understand mediation, because we have successfully mediated hundreds of family breakdowns. To find out more about our mediation process and what is involved, click here (link).