A common concern for separating couples is whether one party has to leave the family home after separation.

Do I have to move out after separation?

Simply put, both parties are entitled to stay in the family home after separation, even if their name is not on the title.

If you are renting, whoever is on the lease is entitled to reside in the property and is legally obligated to pay the rent for that property until the lease ends. If you are renting and one party has ceased paying their share of the rent, contact your landlord or property manager to determine your options.

What if I want my ex-partner to move out?

Neither party can be forced to move out without a court order. In this regard, a court order could be a protection order (or your state/territory equivalent) preventing one party from entering or approaching the premises or an order from the Federal Circuit and Family Court of Australia granting one party the right to sole occupancy. It is worth noting, however, that a sole occupancy order is only usually made in circumstances where there is domestic violence present or where one person has additional needs and adjustments have been made to the house to cater for those needs.

How do we decide who moves out?

Deciding which party moves out after separation is a personal decision that depends on your specific circumstances. You should consider what is in the best interests of everyone involved, including:

1. Whether either of you have alternative accommodation readily available;

2. Whether either party can more comfortably afford the costs associated with establishing a separate household and

3. If children are involved, is it more practical for one person to remain in the home with them?

Who pays the mortgage if one party moves out?

Whoever is listed on the loan documents as the borrower is responsible for making sure mortgage repayments are made. If both parties are borrowers, they are both legally obligated to make mortgage payments. You and your partner can come to a private agreement for one of you to be solely responsible for the mortgage payments pending final property settlement; however, if that party ceases paying, you are still both legally responsible for the mortgage.

In some circumstances, the court can make an order that compels one party to pay their share of the mortgage, or the entire mortgage.

If you and your former partner cannot agree as to who leaves the family home after separation, you may benefit from the assistance of the lawyer. Contact our team of experienced family lawyers on 1300 032 806 or at [email protected] to arrange an initial confidential appointment.