Who gets to keep the family home?

In family law property proceedings, one of the often-argued issues is who gets to keep the family home or another piece of significant property, and that is not difficult to understand, given the bullish behaviour of the real estate market in the past decade or so. In addition, there are also sentimental value, and children’s preferences that are recognised as relevant factors for a Court making such a decision to take into account. One way of resolving this issue is to give the property to the party that can realistically afford to keep it, but what happens in cases where both parties are realistically able to?

Division 1 of the Federal Circuit and Family Court of Australia recently delivered a decision in Davidson & Calder (No 2) [2023] FedCFamC1F 101, that in certain cases where both parties’ proposal were legitimate but not persuasive, justice and equity requires the Court to order that the property be sold by way of public auction in a manner that both parties get to partake in the sale rather than awarding the property to one party. 

In those proceedings, the Court also decided that the husband’s claims of his father’s historic involvement in the property had little relevance to answering the question of who to award the property to, and hiring of labour to make improvements to the property by both parties were not persuasive factors for the Court to consider that question.

Additionally, when considering the husband’s proposal to divide the aggregated piece of land up between the parties, the Court also took the wife’s preference not to have the husband “live next door” even though it was a relatively unimproved rural property (unsuitable for living without improvements) in circumstances where the Court was satisfied that there were some incidents of family violence, into consideration in deciding against that proposal.

So, what factors do a Court take into account when considering such competing claims, you may ask. There are no set rules as to what may persuade a judge but the general guidelines are that whatever plan you may have needs to be specific and viable, and an experienced lawyer who practices in this field will be able to assist you with articulating these plans in a manner that is acceptable to the Court and to better persuade the Court in your favour.

Do not hesitate to contact Longton Legal for an initial consultation to explore how we can assist you in difficult times such as separating from your former spouse.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*