Leaving the Family Home During the Holidays

With the holiday season in full swing, so is divorce season. While separation may be the right thing to do for your family, for the partner leaving the family home, it can be quite daunting. Particularly for men, walking out the door leads to many questions about what the future will look like and what rights they’ve left behind. 

When you leave your children, do you lose your rights?

Just because you or your partner has left does not mean they lose parental rights or the responsibilities of having a family. When assessing parental arrangements the Family Law Act 1975 (Cth) is required to balance two primary considerations; the rights of the children to have a meaningful relationship with both parents and the need to protect children from the risk of abuse and family violence. 

It is rare for the court to take parental rights away, meaning despite your changed living circumstances, you retain control over things like health, education and religion for your child/ren. Despite this, the time each parent spends with their child is a significant point of contention; mainly because it can directly affect both property settlement entitlements, and the periodic child support paid. 

The ability to form an agreement about how often children should see each parent is therefore crucial. When making these decisions, the wellbeing of the children involved is paramount, and whatever is best for the child in their unique situation must be done. To make these decisions, parents may choose to discuss privately or form an agreement with the assistance of negotiation, mediation or by Court order.

How does leaving the family home affect ownership?

Legal ownership of the property does not pass when you vacate the family home. However, once you leave the family home, you may not continue to have free access. If you have decided to move out, your partner can change the locks. Leaving the family home, therefore, does mean you may potentially lose your occupation right until both parties reach an agreement. Financial obligations such as rent or mortgage may still stand depending on your situation, even if you are not occupying the property. 

Finally, there can be a perceived strategic advantage in retaining the home, such as the children’s preference to remain in the home that is familiar to them, which may impact parenting arrangements.

Can fathers be the full time carer of their child/ren and retain the family home? 

Fathers can remain as the full time carers of their child/ren. Family law heavily emphasises the child/ren’s needs and beneficial interests, regardless of the parent’s gender. Depending on the situation, this may leave fathers with sole occupation rights of the property and full time care of the children. 

However, just because a party can retain the home as part of a property settlement, does not necessarily translate to preferred parenting arrangements. Under Section 60CC of the Family Law Act 1975 (Cth), one of the factors the court will consider in determining parenting arrangements, can include the views and wishes expressed by the child. Even without the family home, parents can be awarded majority or full time care of the children so long as the children will not be adversely affected by the move. 

In summary, leaving the family home does have an impact on future parental arrangements. When contemplating separating from your partner and who should leave the family home, seek legal advice. This will allow you to generate options that suit your future, and also support the transition for your ex-partner and children.

This article was written by Legally Yours Intern, Anastasia Misarvidis-Tyshing with legal information provided by Monica Blizzard from KHQ Lawyers.

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This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder, intern or consultant of, in, or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.

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