East Coast Family Lawyers - Family Home

When parties separate, it is common that one party will need to move out of the family home. In some cases, parties are able to continue to live separated and under the one roof until they finalise their property settlement and begin their new lives. However, in most cases, particularly where there is a history of domestic and family violence, one party will need to move out.

The impact of family violence

Far too often, it is the victim of family violence that is forced to move out of the home because it becomes an intolerable place to be. In these circumstances, the person who moves out is often at a financial disadvantage. They are required to obtain rental accommodation, which includes paying a bond and rent in advance, buy new furniture and re-establish themselves. This can create an extreme financial strain, particularly in circumstances where the other person has controlled the finances throughout the relationship or if the person is a stay-at-home parent.

Help when you are under financial stress

Fortunately, the Family Law Act makes provision for a person to be able to receive spousal maintenance in circumstances where they are under financial stress. This is because a person has a responsibility to financially assist their spouse or de-facto partner if they are unable to meet their reasonable living expenses. The test for spousal maintenance is that spouse or de-facto partner has a need for financial support because they cannot meet their reasonable living expenses from their personal income or assets the other person has the income available to pay their spouse or de-facto partner.

Interim property settlements

Another option is to have an interim property settlement which involves certain property being distributed between the parties pending a final property settlement. For example, if there are funds that are able to be drawn down on a mortgage, these can be accessed and provided to the person who is under financial stress. Such an arrangement can be implemented by agreement between the parties or by an order of the Court.

Consequences of failing to support a former spouse

Based on a recent case before the Federal Circuit Court, we can confirm that the Court does not look favourable upon a person who remains living in the family home and fails to support their spouse or de-facto partner. In this case, our client was living off credit cards to be able to pay rent and purchase groceries for their children. In this case, we were able to obtain an interim property settlement for our client by agreement.

If you, or anyone you know is going through a separation and needs advice about a property settlement or what to do next, contact us on (02) 4322 0251 to speak to one of our Family Law specialists.