How Do I Keep the Family Home in a Divorce? Advice from a Family Lawyer

For many people, the family home is more than just an asset. It is where memories were made, routines were built, and children often still feel safest. When a relationship breaks down, one of the first and most emotionally charged questions people ask is, “Can I keep the house?”

The short answer is yes, it can be possible. But it is not automatic, and it depends on your individual circumstances.

In this guide, our family lawyers explain how the family home is treated in an Australian divorce, what the courts look at, and what practical steps you can take if keeping the home is important to you.

*This article is written for general information only. Getting tailored legal advice early can make a significant difference to the outcome.

Why the Family Home Matters So Much in a Divorce

The family home is often the largest asset in a property settlement. It is also tied to stability, especially where children are involved.

According to the studies, around 40 per cent of divorcing couples report disputes over property and finances as one of the most stressful parts of separation. For many, the home sits at the centre of that stress.

Understanding how the law approaches property division can help you make informed decisions rather than reacting emotionally under pressure.

Separation and divorce are difficult enough on their own, but these difficult times often come alongside property and financial issues, parenting and children’s issues, and other complex legal matters. To navigate these stressful legal circumstances in the most seamless, affordable, and convenient manner possible, contact our family lawyers servicing Manly, Newtown, Parramatta or Sutherland.

How Property Settlements Work in Australia

Australia follows a no-fault divorce system. The court does not consider who caused the marriage breakdown. Instead, property settlements are assessed under a structured legal approach.

When deciding who keeps the family home, the court generally looks at four key steps.

Step 1: Identify and Value All Assets

The family home is considered part of the overall property pool. This includes:

• The home itself
• Superannuation
• Savings and investments
• Vehicles
• Businesses
• Debts such as mortgages, credit cards, and loans

The house is not considered in isolation. Even if it is the most important asset to you emotionally, legally it is one part of the bigger picture.

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Step 2: Assess Contributions

The court looks at what each party contributed to the relationship. This includes:

• Financial contributions such as income, deposits, and mortgage payments
• Non-financial contributions such as renovations or unpaid work
• Contributions as a homemaker or parent

Importantly, caring for children and running the household are recognised as valuable contributions, even if one party earned less income.

Step 3: Consider Future Needs

Future needs can have a major impact on who keeps the home. The court considers factors such as:

• Who the children live with and how often
• Income differences between parties
• Health issues
• Age and earning capacity

For example, a parent who has primary care of the children may have a stronger argument for retaining the family home so the children can remain in a familiar environment.

Step 4: Is the Outcome Just and Equitable?

Finally, the court looks at whether the proposed division is fair in all the circumstances. This is where the practical realities of keeping the home are carefully examined.

Does Having Children Increase My Chances of Keeping the Home?

Having children does not automatically mean you will keep the family home, but it is an important factor.

Courts often try to minimise disruption to children’s lives. If the home is close to school, support networks, and familiar routines, this can support an argument for one parent to remain in the property.

However, the court will also consider whether it is financially realistic for that parent to keep the home in the long term.

Can I Keep the Family Home if It Is in Both Names?

Yes, it is possible, but it usually involves a financial trade-off.

If the home is jointly owned, keeping it typically requires one of the following:

• Buying out the other party’s share
• Offsetting the value of the home against other assets, such as superannuation
• Refinancing the mortgage into one name

This is where careful financial planning and legal advice become essential.

What If I Cannot Afford to Buy Out My Ex?

Affordability is one of the biggest barriers to keeping the family home.

If you cannot service the mortgage on your own or refinance, the court is unlikely to allow you to keep the property. Lenders apply their own criteria, which can override even a court-approved settlement.

In some cases, families explore alternative options, such as:

• Delaying the sale of the home until children reach a certain age
• Agreeing to sell the home at a later date
• Retaining the home temporarily while arrangements stabilise

These options can be complex and must be carefully drafted to avoid future disputes.

What About the Mortgage?

The mortgage does not disappear after separation.

Even if one person moves out, both parties remain legally responsible for the loan if it is in joint names. This can create financial risk if repayments are missed.

If you want to keep the home, you will usually need to:

• Refinance the loan into your sole name
• Prove to the lender that you can afford repayments independently
• Remove your former partner from liability

A family lawyer can work alongside your broker or lender to ensure your legal agreement aligns with finance requirements.

Can We Decide This Without Going to Court?

Yes, and in most cases, that is strongly encouraged.

Many property settlements are resolved through:

• Negotiation between lawyers
• Mediation or family dispute resolution
• Binding financial agreements
• Consent orders approved by the court

These options are usually faster, less expensive, and less stressful than litigation.

If you are aiming to keep the family home, reaching an agreement early can give you more flexibility and control over the outcome.

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What If My Ex Refuses to Leave the Home?

This is a common concern, particularly in the early stages of separation.

Ownership alone does not always determine who can live in the home during separation. Factors such as safety, children’s arrangements, and interim agreements may come into play.

In urgent situations, the court can make interim orders about who occupies the property. However, these are separate from the final property settlement.

Time Limits You Need to Know

Strict time limits apply to property settlements in Australia.

• Married couples must apply for a property settlement within 12 months of divorce
• De facto couples generally have two years from the date of separation

Missing these deadlines can make your situation significantly more complicated, so early advice is critical.

Common Mistakes That Can Affect Your Chances

People often harm their position without realising it. Some common mistakes include:

• Assuming the home automatically goes to the primary carer
• Agreeing to informal arrangements without legal advice
• Delaying financial separation while still paying joint expenses
• Transferring property or assets without proper documentation

A family lawyer can help you avoid these pitfalls and protect your long-term interests.

How a Family Lawyer Can Help You Keep the Home

Keeping the family home requires more than just wanting it. It involves legal strategy, financial planning, and realistic decision-making.

A family lawyer can help by:

• Assessing whether keeping the home is legally and financially achievable
• Negotiating a settlement that supports your goals
• Drafting enforceable agreements or consent orders
• Coordinating with financial advisers and lenders
• Representing you if court proceedings become necessary

At Buckley Lawyers, our family law team understands how emotionally complex these decisions can be. We focus on clear advice, practical solutions, and outcomes that support your future stability.

Further Reading

If you would like to explore related topics, you may find these resources helpful:

• Property settlements after separation
• What to expect during a divorce in Australia

These articles provide additional context and can help you feel more confident about the process.

Speak to a Family Lawyer About Your Options

Every separation is different, and there is no one-size-fits-all answer to keeping the family home. What matters is understanding your rights, your obligations, and your realistic options before making decisions that affect your future.

If you are separating or already divorced and want clear advice about your property settlement, speak with an experienced family lawyer at Buckley Lawyers. Early guidance can make all the difference. Our areas of expertise include property settlements, parenting arrangements, consent orders, financial agreements, divorce, child recovery. With a focus on integrity and trust, we aim to minimise costs and achieve the most favourable outcomes for our clients.

Contact our team today to book a confidential consultation and take the first step toward clarity and certainty.