Who gets the family home after separation depends on who can refinance the property taking into account there is likely to be a payment made to the other party.

If you are on an income of $50,000 and the current Mortgage is say $400,000 then you are highly unlikely to get a loan.

A lot of people ask whether it is possible to stay in the home until the youngest child leaves school but that means that neither of you can move on with your lives.

The Courts are also unlikely to sign off on such an agreement in a Family Law matter if it is more than a few years as it does not finalise financial matters between you.  There will also be the issue as to who pays the mortgage after separation.  If you are in the home then you should be paying all of the costs as the other party is likely to be paying rent.

This is expected even though the mortgage may be in both names.

The first person you should speak with is either your current lender or a mortgage broker to see what your refinance limit is.  If neither of you can raise the finance then the home will have to be sold.  You can sell a property prior to having a property agreement in place as long as the solicitor of conveyancer has a trust account for the net money from the sale to be held.

That way if the home was in joint names, the money cannot be touched until you both agree to the split.

It is in your best interests to keep the home if possible as you will not be liable for stamp duty.  In order to save stamp duty you need a formal agreement in place drafted by a Family Law solicitor.

If you sell then you will be liable for any stamp duty on any future property you buy.  If the house is worth say $500,000 then you would save about $20,000.  If you have agreed to a property split then a solicitor can draw up the documents for as little as $3,000, saving you a lot of money.

If you need Family Law Advice, Call our Family Law Team on 4324 7699