Do I lose my entitlements if I leave our home?
If the relationship ends and you leave the matrimonial home YOU DO NOT lose any rights of ownership to the property, whether the property is in your name or not.
If your name is not on title it is likely that you have an equitable interest in that property and that interest needs to be protected. There are two (2) ways to protect your interest and these are by lodging a Caveat on the property or seeking an injunction through the Court. You should seek legal advice to discuss your matter and access any rights, title or interest you may have.
Do I have to pay the mortgage if I’m not living in the home?
This depends on both parties’ financial circumstances but the general rule is that the party residing in the home pays the mortgage whilst the other party pays rent, if renting. Every matter turns on its own circumstances, for example if there is one (1) high income earner against a stay at home parent or a low income earner, the situation will be different and the high income earner may be required to pay the mortgage solely. Every situation has to be carefully assessed on its own facts and circumstances and the appropriate advice provided. Again, seek legal advice early in preparing yourself if you have made the decision to leave. If you have already left, please seek legal advice as soon as possible.
Do I need to go to Court to resolve these matters?
No, you do not necessarily have to go to Court to resolve these matters. If you can reach an agreement in how to deal with either your financial or children’s matters or both then Consent Orders can be forwarded to the Family Court of Australia which are reviewed by the Registrar and if appropriate, sealed and returned. Should you wish to enter into a Binding Financial Agreement instead of Consent Orders in relation to financial matters, there is no need for Court involvement at all. There is however strict compliance issues with any such agreement.
My friend told me...
Separation is an extremely emotional and confusing time. It is a time when we need our friends to help us and prop us up, but be careful to distinguish a friend’s support as opposed to their advice. Every family law matter turns on its own facts and circumstances, therefore it is important that you obtain your own legal advice as soon as possible. Misconception and misgivings can lead to a false sense of security. Obtain advice early.
Does my superannuation form part of a financial settlement?
The answer is yes it does. Superannuation forms part of the property pool and must be included for both parties. It may work out that you are both able to retain your own superannuation depending on the agreements reached in dividing the matrimonial pool.
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