It is possible to keep the house in a divorce. However, for an individual to legally do so, they must apply to the court. It is important to note that when applying to the court, the individual should list all financial assets and income.

The court will consider several factors when deciding who keeps the house. Some of these are listed below:

  • Whether there are any children under the age of 18, their needs and who they live with
  • Age of each person in the marriage
  • Length of the marriage
  • Value of assets before, during and after marriage
  • Earning capacity and responsibilities during marriage and in the future
  • Each person’s contribution financially and non-financially e.g. caring for the family
  • Standard of living during the marriage
  • Conduct of each person
  • Overall needs of each person
  • Whether anyone has a mental and/or physical impairment

After considering the factors above, the court will make a decision and finalise it by declaring an order. The court can make several orders. For example, the court may decide to transfer all of the property to one person, sell the property and divide the proceeds or even postpone the sale of the property until an event occurs such as a child reaching the age of 18.

Until the court makes a final order, every person who lives in the house has what is known as ‘home rights’. This means they are entitled to stay in the property until the court has made a final order.

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