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Family Forum: Who gets the house?

Courts will decide how assets are divided up

QUESTION:

My parents separated six months ago, but my father won’t divorce my mother.

It was the second marriage for both. My mother owned the house 100 per cent when they met and still does.

They lived in the house for 23 years and he has now moved out.

My father wants to claim 50 per cent of my mother’s home, can he do this? There are no prenuptials and only her name has ever been on the title.

ANSWER:

Your mother and father can apply for a divorce after they have been separated for more than one year, so your father cannot institute divorce proceedings at this stage.

Your parents can, however, deal with their property and reach an agreement, or if need be, apply to a Court for a property settlement. Your parents have had a long marriage and it may be that when your parents’ overall contributions and needs are taken into account, that your mother’s ownership of the home initially is not considered to be a significant factor. On the other hand, her initial contribution of the home ownership, depending on the amount of equity she had in the home at the commencement of the relationship, may be very important and may be taken into account by a Court in any property settlement.

Your father can certainly make a claim for a share of the property, including your mother’s house, notwithstanding that it is registered in her name only. It may be that he would be entitled to 50 per cent of the property.

If your parents cannot reach their own agreement, a Court would consider the financial, and non-financial, contributions each of them has made to the assets of their marriage. It is likely that your mother’s home would be regarded as one of the assets of the marriage, even though she owned it at the time of marriage. The Court also has to take into account the health of both of your parents and a range of other factors, including their income and future needs. Both your parents should get independent advice from a divorce lawyer. They can reach an agreement with the help of a mediator.

This must be a very stressful time for you and your parents. If your parents are struggling to cope with the situation, you might suggest to them that they obtain help from a counsellor, as well as obtaining some legal advice.

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Family Forum is a panel of general practitioners, medical specialists, lawyers, therapeutic and financial counsellors to discuss each letter before the appropriate professional answers it. The panel is appointed by Relationships Australia SA.

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