There is no automatic rule about who keeps the house after separation in NSW. There is no 50/50 presumption in Australian family law. Instead, the Federal Circuit and Family Court applies a structured process, now written directly into the Family Law Act 1975, to decide what division of property is just and equitable for your particular circumstances. The house is dealt with as part of the overall property pool, not in isolation.
How the court decides property division
Since the family law changes that took effect on 10 June 2025, the framework is codified in the Act. In broad terms the court works through four steps:
1. Identify the property pool. Everything counts, whichever name it is in: the family home, mortgages and other debts, savings, cars, businesses, shares, trusts and superannuation. Both parties have a duty to give full and frank disclosure of their finances, a duty which is now also written into the Act itself.
2. Assess contributions. This includes financial contributions like income and the deposit, non-financial contributions like renovations, and contributions as homemaker and parent, which the law treats seriously. Since June 2025, the court can also consider the effect of family violence on a party’s ability to contribute.
3. Consider current and future circumstances. Age, health, income and earning capacity, care of children, and the housing needs of each party, particularly the parent with primary care of the children.
4. Check the outcome is just and equitable overall.
So who actually keeps the house?
Common outcomes include one party retaining the home and paying out the other’s share, usually by refinancing the mortgage; selling the home and dividing the proceeds; or, less commonly, deferring sale for a period, for example until children finish school. Which outcome makes sense depends on borrowing capacity, the size of the rest of the pool, and the children’s arrangements. In practice, whether you can service the mortgage on one income is often the deciding factor.
Does it matter whose name the house is in?
Generally no. Property in one party’s sole name still forms part of the pool for a married or de facto couple. What matters is the contributions and circumstances analysis above, not the title deed alone.
Time limits apply
If you were married, you generally have 12 months from the date your divorce becomes final to apply to the court for a property settlement. De facto couples generally have two years from separation. Agreements reached earlier can be formalised at any time by consent orders or a binding financial agreement, and you do not need to go to court to divide property if you can agree.
Frequently asked questions
Can my ex force me to sell the house?
Not unilaterally. A sale generally happens by agreement or by court order as part of a property settlement. If proceedings are on foot, the court can order a sale where that is the just and equitable outcome.
I stayed home with the kids while my partner worked. Do I get less?
No. Contributions as a homemaker and parent are recognised alongside financial contributions. A parent who ran the household while the other earned income is not treated as having contributed less by default.
Does superannuation count?
Yes. Superannuation is part of the property pool and can be split between parties, although it stays in the superannuation system until retirement conditions are met.
What about pets?
Since June 2025 the Family Law Act has specific provisions for companion animals. The court can consider factors including any family violence and who has cared for the animal when deciding who keeps a pet.
Get a clear picture of your position
Guessing at your entitlement is stressful and often wrong in both directions. A one-off 90-minute consultation with Garrison Lawyers gives you a realistic view of the likely range for your property settlement and the most cost-effective path to it, whether that is negotiation, mediation or consent orders. Book through our consultations page or call (02) 4210 9288. We act for clients across Wollongong, Lake Heights, Shellharbour, Kiama, the Illawarra and the Shoalhaven.
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This article is general information only, current at the date of publication. It is not legal advice and does not take your circumstances into account. For advice about your situation, speak with a family lawyer.