Who Should Move Out?
Often when people separate, they quickly make the decision to no longer live together. It is possible to separate under the one roof but more often than not, someone will decide to move out. There are positive and negative effects that flow from deciding to leave the home and the decision of whether to move out is affected by different considerations, some obvious and others not so obvious.
While it might be tempting to flee the home once a decision to separate has been made, it is important to consider a variety of legal and practical issues.
Where there are children from the relationship, the most appropriate course of action is to ensure there is minimal disruption to their daily lives following separation. In those circumstances, it is logical to assume the primary carer of the children will remain living in the home with them to ensure their regular routines are maintained. Where the primary carer does not earn an income sufficient to meet the costs associated with the home, it is appropriate for the primary income earner to continue to meet these costs until other arrangements can be made.
It is important to consider which party is the registered owner of the home, or whether the home is registered in joint names, or by a third party such as parents, or a company. Where the home is registered in one party’s name, consider the risk of that person selling the property without notice and retaining the sale proceeds. In the event this occurs, it is possible to bring an application to the court for an order restraining the other party from dealing with the funds. However, it is preferable to ensure the sale does not occur in the first instance, particularly where there is no agreement as to how the proceeds of sale are to be dealt with. In the event the property is owned by a third party, and there is evidence that an interest in that property might be established, strategically, it might be appropriate to remain in the home, if possible, until a caveat can be lodged.
If there are no children of the relationship, or if the care of the children is more or less shared, the next relevant consideration is whether either party is capable of meeting the repayments and bills for the home. Where neither party is able to meet the repayments, the most appropriate course of action is to list the property for sale quickly and come to an agreement in relation to the division of sale proceeds, or that the proceeds be held on trust in a lawyer’s trust account until agreement as to property settlement is reached.
Ability to Sell
Where the home is registered in joint names, both parties will need to agree in order for it to be sold. Where the other party is known to “drag their feet” or it is likely they will not readily accept the separation, care should be taken as generally speaking, the person who moves out loses control over the sale process. Open homes, cleaning for inspection and choosing a real estate agent can quickly turn into long and expensive issues and ultimately, the person living in the home will have control over the process.
In cases where one party has suffered family violence, and they are fearful of their former partner, it is possible to apply for an Intervention Order. After an application has been made, the Magistrates’ Court will often provide a Temporary Protection Order to the applicant until both parties can appear before the court to determine the issues concerning the family violence. One possible outcome of obtaining the order is excluding the other party from attending the home. Further, if family violence is present and a party is concerned for their safety, it is inadvisable to remain in the home for strategic purposes and the first priority needs to be the safety of the affected party and, potentially, their children.
Whether to move out can be a difficult and emotional decision. Once a person decides that they want to separate from their partner, often there appears to be no alternative other than to move out of the home as soon as possible. This is not the case. It is important to seek legal advice and ensure the decision is made knowing the possible outcomes and effects before taking the leap.
For advice or representation, please contact Armstrong Legal.