Written by Brett Hartley, 4 April 2023
This is a question we are most asked on a day-to-day basis from our clients and which we try to help them understand at an early stage the possibility and risks associated with keeping the home.
We always try to emphasise to our clients that there home is just another asset and it is just “bricks and mortar”, because that is our role as an advisor, to remove emotion from any deal.
However, we do recognise that in some matters, the stability of familiar surroundings and community can provide a very positive, calming influence and can be a benefit to children.
Depending upon the age of the children, often being uprooted from the family home, not only causes stress in relation to a new unfamiliar environment being encountered, but also may remove children from existing schools, sporting clubs, community, and friendships.
It may be in some situations, the parties can look to maintain the home for the children and still be able to effect a fair and equitable property settlement. In some cases, the so-called percentage outcome may seem at first blush not to enable an outcome to be reached whereby one party keeps the home for the children.
However, that is not the end of the story. Whilst, the Law says we need to know what the property is and what its value is, there is nothing in the Family Law Act to specify property must always be valued and that there must always be a strict percentage applied.
The reason why property is valued and the reason why percentage adjustments are applied is to ensure that a settlement is a just and equitable settlement and falls within an accepted range of outcomes. Without a valuation, and without percentages, it would be very hard for the Law to judge as to whether such a settlement is fair or not.
The Law however states that not every outcome must be strictly just and equitable and fall within a range. On many occasions we do deals for clients where a client takes less or more than what they are entitled to and that deal can often be approved by the Court in the form of a Consent Order.
The Law must take into account the terms of the deal and what a range of outcomes can be – but where both parties are legally represented and reach an agreement based on common sense, best interests of the children and other factors, the Court can in those circumstances, approve an arrangement where it enables a party to keep the home, even if the so called percentage adjustments seem either a bit too high or a bit too low, according to a strict application of first principles.
In challenging economic times, it is important to sometimes look at novel solutions that do not necessarily produce a strict mathematical outcome.
