The family home isn’t just a house — it’s your biggest asset and your safe place.
As Darryl Kerrigan from the movie ‘The Castle’ famously quoted: “It’s not a house it’s a home, a man’s home is his castle.”
But during a divorce, it’s also up for grabs!
Many people think they’ll automatically keep the house, especially if it’s in their name. That’s not how it works. Under Australian family law, the family home is part of the “property pool,” and both partners may have a claim on it.
The good news? You can protect your castle… At least, you can protect your stake in it.
With the right steps — like lodging a caveat or gathering proof of your contributions — you’ll have a stronger chance of keeping your home.
Here’s 5 steps to show you how.
1. Lodge a caveat on the property
A caveat prevents your spouse from selling, refinancing, or transferring the property behind your back. I know, very sneaky. But trust me, it happens!
But a caveat stops it cold.
How to do it? A family lawyer can help you lodge it with your local Land Titles Office — it’s fast, effective, and powerful
2. Keep records of contributions
The court considers contributions (both financial and non-financial) when deciding how to divide property.
What counts as a contribution?
- Direct contributions: Mortgage payments, renovations, home deposits.
- Indirect contributions: Housework, childcare, maintenance work or supporting your partner’s career.
Pro tip: Keep a paper trail – bank statements, receipts for renovations, and any proof of financial support.
3. Stay in the house (if possible)
If you leave the home, it can weaken your claim to it. I know, this could make for awkward situations. But if you can live separated under one roof, do so until the settlement is final. Trust me, it’ll be worth it.
Of course, if it’s unsafe and the relationship is toxic, prioritise your safety and move out. Just seek legal advice to maintain your claim.
4. Avoid co-mingling property funds
What is co-mingling? It’s when you mix personal funds, for example—an inheritance, with joint property, such as the family home.
This is a risky move because if you’ve used inheritance or gifts to pay off the mortgage or renovate, it can be considered a “joint contribution.”
How to protect yourself? If you’ve already contributed funds, keep proof of where the money came from, like:
- Inheritance letters
- bank transfers
- gift records.
Remember, in divorce—paper trail is paramount.
5. Get a Binding Financial Agreement (BFA)
Saving the best for last as this is arguably the most important step you can take in protecting your assets in a divorce.
A BFA is a legally binding contract that outlines who gets what in the case of a divorce. If you and your partner agree that the house should remain yours, a BFA makes it official—and enforceable.
You may be thinking it’s too late to get a BFA. While getting a BFA before marriage is ideal, you can still have one drawn up and signed during marriage, and even after separation.
However, the longer you leave it, the harder it is to have both parties sign-off on an agreement, especially once divorce proceedings are underway.
The best thing you can do to get started is to seek legal advice from a family lawyer like Randle & Taylor Barristers and Solicitors.
Get a professional team on your side
The family home is one of the most valuable — and emotional — assets in a divorce.
But if you want to protect your claim, you need to act early. These moves can make a big difference when it’s time to divide property.
If you’re unsure where to start, your local family lawyer or solicitor can guide you every step of the way. From lodging caveats to negotiating settlements, they’ll help you protect your home.
Key takeaways
- Stay put (if it’s safe): Leaving the family home early can weaken your claim, so stay under the same roof if possible.
- Lodge a caveat: A caveat stops your partner from selling, refinancing, or transferring ownership of the home without your consent.
- Track your contributions: Keep proof of mortgage payments, renovations, and household contributions to strengthen your claim.
Author: Marshall Thurlow is Director and Founder of Orion Marketing Pty Ltd. He is a digital marketer with expertise in SEO, website design, content marketing, and project management.
