Who gets the house in a divorce in Australia depends on what is considered fair under the Family Law Act 1975 (Cth). There is no automatic rule or fixed percentage split. Instead, the Court decides ownership based on what is “just and equitable,” considering each party’s financial and non-financial contributions, parenting responsibilities, future needs, and ability to maintain the property.
The family home is treated as part of the overall asset pool and may be sold, transferred, or retained by one party—most often the primary caregiver of children—if supported by the evidence and financial capacity.
How the Family Home Is Treated Under the Family Law Act?
Under the Family Law Act 1975 (Cth), the family home is treated as a shared marital asset—regardless of whose name appears on the property title. This means that even if one spouse solely owns the home, it still forms part of the property pool to be divided during divorce or separation.
The Federal Circuit and Family Court of Australia (FCFCOA) considers the home alongside all other assets and liabilities, including superannuation, savings, investments, and debts. The Court then applies a four-step process to ensure the outcome is legally fair:
- Identify and value all assets and liabilities, including the family home.
- Assess each party’s contributions, both financial (such as paying the mortgage) and non-financial (such as homemaking or child care).
- Consider future needs, including income capacity, health, and care of children.
- Ensure the final division is just and equitable under the Act.
In short, the family home is not awarded automatically to either party — it is divided in line with the broader principles of fairness and contribution under Australian family law.
Key Legal Factors Determining Who Keeps the House
Courts consider numerous factors when deciding whether one spouse may retain the home or whether it should be sold and proceeds distributed. The most significant include:
- Financial contributions: direct payments toward the deposit, mortgage, or renovations.
- Non-financial contributions: unpaid domestic labour, child-rearing, and property maintenance that enhanced the asset’s value.
- Parenting responsibilities: stability for dependent children is often prioritised; a primary caregiver may be more likely to remain in the home.
- Earning capacity and borrowing power: whether one party can refinance or assume responsibility for the mortgage.
- Existing agreements: binding financial agreements or prior court orders influencing entitlement.
No single factor is determinative. The Court evaluates the totality of contributions and needs to achieve a fair result consistent with statutory principles.
Can One Party Keep the House After Divorce?
Yes — one party can keep the house after divorce in Australia, but only if the outcome is considered “just and equitable” under the Family Law Act 1975 (Cth). The Court does not automatically grant ownership to either spouse. Instead, the person who wishes to retain the property must demonstrate both legal entitlement and financial capacity to do so.
This usually means showing the ability to refinance the mortgage, buy out the other party’s share, or offset the property value through other assets in the settlement. In many cases, the spouse who is the primary carer of children may be more likely to keep the home, as maintaining stability for children is a key consideration under family law principles.
However, keeping the house is not guaranteed. The Court will evaluate the entire property pool, including superannuation and debts, and ensure that retaining the house does not cause unfair financial disadvantage to the other party. If an agreement cannot be reached, the Court may instead order the sale of the home and divide the proceeds between both parties according to their assessed entitlements.
What Happens to the Mortgage?
When a couple divorces in Australia, the mortgage remains a joint legal responsibility until a formal property settlement or refinance occurs. Under the Family Law Act 1975 (Cth), both spouses remain liable for mortgage repayments — even if one party moves out of the home — because the loan contract is separate from the marriage.
If one spouse wishes to keep the house, they must generally refinance the mortgage into their sole name and pay out the other party’s equity as determined by the property division. The lender must approve the refinance based on that individual’s income, credit history, and serviceability.
Alternatively, if neither party can maintain the mortgage, the Court may order the sale of the property, with the mortgage being paid out first and the remaining equity divided according to each party’s entitlements.
In practical terms:
- Until the refinance or sale is finalised, both names remain on the loan and title.
- Missed payments can affect both credit ratings.
- Temporary financial arrangements (such as spousal maintenance or interim property orders) can help manage repayments during proceedings.
In short, the mortgage follows the legal ownership and settlement outcome — not the emotional separation — making timely financial and legal advice essential during the divorce process. For couples unsure how to proceed, finding a good family lawyer through LegalFinda ensures expert guidance, proper documentation, and protection of long-term financial interests.
Valuation of the Family Home
A fair settlement depends on objective valuation. Courts typically rely on an independent sworn valuer rather than informal appraisals. The valuation establishes the market value as at the date of settlement and forms the evidentiary foundation for division.
Where parties agree, the valuation process can occur privately; however, in contested matters, a single-expert valuer is usually appointed to ensure impartiality.
Divorce House Settlement When Children Are Involved
When minor children are involved, their welfare is a primary consideration. Courts recognise the importance of residential stability and may favour arrangements that allow the primary caregiver to remain in the home, particularly when financially viable.
However, this preference must still align with the overarching “just and equitable” standard. Any advantage given to one parent is balanced against the other’s entitlements to ensure proportional fairness.
De Facto and Common-Law Property Settlements
Under the Family Law Act 1975 (Cth), de facto couples — including same-sex partners — have the same property-settlement rights as married spouses if the relationship lasted at least two years or produced a child.
Accordingly, the same legal framework governs who retains the home, how contributions are assessed, and whether asset adjustments are necessary to achieve fairness.
Mediation and Consent Orders
Most disputes over the family home are resolved without litigation. Through family dispute resolution (FDR), parties may negotiate outcomes that best suit their financial and parenting arrangements.
When an agreement is reached, it can be formalised by:
- Consent Orders, approved by the Court, or
- A Binding Financial Agreement (BFA) executed under strict legal formalities.
Both methods provide enforceable finality while avoiding the costs and uncertainty of a defended hearing.
Time Limits for Lodging Property-Settlement Claims
Time limits apply strictly under Australian family law:
- Married couples: must file within 12 months after the divorce order becomes final.
- De facto couples: must apply within 2 years of separation.
Extensions are granted only in exceptional circumstances, such as hardship or consent of both parties. Missing the deadline can significantly jeopardise rights to the property.
When Legal Representation Becomes Essential?
Legal representation becomes essential in a divorce when there is dispute, financial complexity, or property at risk. Under the Family Law Act 1975 (Cth), decisions about who keeps the house, how assets are divided, and what happens to the mortgage must meet the standard of being “just and equitable.” Achieving that outcome without legal assistance can be extremely difficult.
A family lawyer is critical when:
- One party wishes to keep the family home and a valuation or refinance is required.
- There are joint debts or mortgages that need to be legally separated.
- Disputes arise over contributions or entitlements, including superannuation and investments.
- One party refuses to disclose financial information or comply with settlement negotiations.
Legal practitioners not only interpret complex sections of the Family Law Act but also prepare binding financial agreements, consent orders, or court applications to protect each client’s rights. Without proper representation, individuals risk unfavourable settlements or unenforceable agreements.
For anyone navigating property division or housing disputes after separation, engaging a qualified lawyer through LegalFinda ensures that every step — from negotiation to final order — is compliant, strategic, and legally sound.
Frequently Asked Questions
Before pursuing a settlement, separating couples often have similar concerns. The following answers clarify common legal scenarios in Australian property division.
Can one spouse buy out the other’s share?
Yes. A party may buy out the other’s interest through refinancing or offsetting other assets, provided the arrangement is fair and the party can demonstrate financial capacity.
Is a 50/50 split standard in Australian property settlements?
No. The law does not mandate equal division. The Court determines each party’s percentage based on contributions and future needs — often resulting in splits ranging from 40/60 to 55/45, depending on circumstances.
What happens to the mortgage during separation?
Both parties remain liable for payments until refinancing or sale. Failure to meet obligations can affect both credit histories, even if one party no longer resides in the property.
Does having children affect who gets the house?
Yes. The primary caregiver of children may be more likely to retain the home to maintain stability, though this must still align with equitable principles and compensation to the other spouse.
How does the Court handle short marriages?
In short marriages without children, financial contributions often carry greater weight than homemaking contributions, leading to a division more reflective of direct monetary input.
Conclusion
The question of who gets the house in a divorce in Australia depends on a thorough application of the Family Law Act 1975 (Cth). Courts aim for outcomes that balance fairness, financial realities, and the welfare of any children involved.
For couples navigating property settlement, informed legal representation is crucial to safeguard entitlements, manage mortgage responsibilities, and achieve enforceable outcomes.
LegalFinda connects Australians with experienced family-law practitioners who can advise on house division, property-settlement strategy, and compliance with federal legislation.
Seek expert legal guidance today with LegalFinda — ensuring your financial future is protected with precision and fairness.
