Who Really Gets the House? Myth vs Reality in Divorce Settlements

Clients often arrive with certainty. I paid for it, so it’s mine. Or I earn less, so I’ll lose the house. Both propositions are usually wrong. The family home is not allocated by slogans. It is allocated by statute, discretion, and evidence. Legal ownership matters far less than most expect.

The court is not interested in historic bookkeeping. Whose name is on the title, who paid the deposit, and who serviced the mortgage may be relevant, but they are rarely decisive. The exercise is not to reward contribution. It is to achieve fairness. The first and dominant consideration is need, particularly housing need. Where there are children, their welfare comes first. Someone must house them. If there is only one suitable home, the court will usually ensure it is available to the primary carer, regardless of who earned what during the marriage. That is not punishment. It is prioritisation. Once a property becomes the family home, it is commonly treated as a matrimonial asset, even if it was owned before marriage or funded largely by one party. The longer the marriage, the harder it is to argue otherwise. Claims that the house should be excluded altogether rarely succeed unless needs can be fully met from other assets. Equality is a starting point, not a destination. The court begins at 50/50 and then adjusts as fairness requires.

Where resources are limited, equality gives way to practicality. Outcomes often look unequal because life is unequal. Where possible, the court prefers a clean break: sale of the house and division of the proceeds. Where that cannot sensibly happen, the court may order a deferred sale. One party remains in the house, usually until children finish education, while the other’s interest is preserved for the future. That is not winning the house. It is postponing division. Earning capacity matters. A spouse who stepped back from work to raise children is not treated as having chosen disadvantage. Equally, a high earner is not assumed to be able to work indefinitely at the same level. The court tests assertions against evidence, not optimism. Conduct almost never decides who keeps the house. Infidelity, bad behaviour, and moral grievance are legally irrelevant.

Only conduct that is both exceptional and financially meaningful is likely to count, and that is rare. The central mistake clients make is to ask the wrong question. The question is not who gets the house. The question is how the needs of this family are best met with the assets available. Once that is understood, disputes tend to resolve more quickly and at lower cost. If you have a legal dispute, contact Hunter Lawyers for a free confidential consultation.