How do I keep the house? (part one)

Video transcript

Hi. My name’s Hannah Flanderka and I’m a lawyer in the family law team here at Cooper Grace Ward. In property settlement matters, clients often ask me; ‘How do I keep the house?’ ‘What do I need to do?’ Craig Turvey, Special Counsel in our team, has a great video that looks at issues to consider if there’s a disagreement between you and your former spouse about who’s getting the house, and particularly if court proceedings are on foot.

Just and equitable

For today’s video, though, I wanted to have a look at some practical considerations that might be relevant to you if you have reached an agreement about keeping the house. As a starting point, property settlement orders will not be made by the court unless the court can be satisfied that the proposed outcome is what’s called ‘just and equitable’. Depending on the circumstances of each case, in the context of being able to keep a house that was previously owned jointly between you and your former spouse, a just and equitable outcome may require, for example, that you will refinance the mortgage for that home into your sole name and also potentially pay your former spouse a cash settlement sum in exchange for the transfer.

Five-step process

What you’re required to pay your spouse will really depend on an assessment of the first three steps of the court’s property settlement process, which is a five-step process, and includes firstly quantifying the asset pool, assessing contributions, and then looking at adjustments that may be necessary for future needs. Secondly, another aspect to look at is obviously what you can afford to pay your spouse, and that will really depend on your practical circumstances and for example, it might be that there’s some assets available in the property pool you can use as a source of funds for the cash payout, or you could negotiate a lower cash payout in exchange, for example, transferring a share of your super to your spouse. The composition of the settlement that your spouse will receive in exchange for the house and what will be enticing to them will really depend on the circumstances. So, for example, it might be that they’re willing to accept an exchange of your super for the home on the basis that they’re nearing retirement age and they’ll be able to access their superannuation in the next couple of years anyway. On the other hand, it might be that they will need a higher cash settlement because they will be without a home after the transfer and it could be that they’re seeking to rely on cash settlement to be able to afford buying a new property for themselves. The Court will also consider whether the proposed settlement sum is sufficient to enable your former spouse to support themselves in the future as part of determining whether the proposed outcome of you keeping the home is just and equitable. Similarly, if you have children and you’re not the primary carer of the kids and so they’ll be living with your spouse if you’re keeping the home, the court will be looking at, is it just and equitable that you keep the home and your former spouse and the children will be finding alternative accommodation? These factors are important to consider prior to agreeing upon a settlement outcome so that you can ensure that whatever the outcome is, is likely to be something the court will accept.

This video is part one of a two-part series that explores practical factors to consider in determining what might affect you keeping the home in your property settlement. Thank you very much for listening. My name again is Hannah Flanderka and if you have any questions that are family law related, please do not hesitate to contact me or a member of our team at Cooper Grace Ward.