The family home is usually the biggest asset a separating couple owns, and it is often the first question people ask: who gets to keep it? For families in Springfield, Ipswich and across Queensland, the answer is rarely straightforward.
There is no rule that says the person who stays in the home keeps it, or that it must be sold. What happens to the home depends on the overall property settlement, which looks at the whole picture of what both people own, owe and contributed over the course of the relationship, according to the Federal Circuit and Family Court of Australia.
Our solicitors in Springfield and Ipswich help clients across Greater Springfield with property settlements after separation. Here is how the process generally works in Queensland, and what the decision about the family home usually involves.
Here is how the question of who gets the house is generally decided in Queensland, and why the answer depends on the whole settlement.
Key takeaways
- No formula decides who keeps the home; a court looks at the whole settlement.
- Moving out does not mean giving up your share of the property.
- Married couples have 12 months after divorce to apply for property orders.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
How does a court decide who gets the house in a Queensland property settlement?
There is no formula used to divide property and finances, according to the Federal Circuit and Family Court of Australia. The Court decides what is just and equitable based on the circumstances of each case. The family home is not dealt with in isolation: it is considered as part of the whole asset pool, which includes all property, superannuation and debts held by both parties together and separately.
From 10 June 2025, the Family Law Amendment Act changed how courts approach property matters. The Court must now identify all property and liabilities, assess each party's contributions to the pool and to the welfare of the family, and assess each party's current and future circumstances, including income, earning capacity, age, health and care of children. The economic effect of family violence, where relevant, must also be considered.
What this means in practice is that the home may go to one party, be sold and the proceeds divided, or become the subject of a deferred arrangement. There is no single outcome that applies across cases. A solicitor can work through the specific circumstances with you.
What contributions count when working out who keeps the home?
The Court looks at contributions made before, during and after the relationship, according to the Federal Circuit and Family Court of Australia. Contributions are not limited to money paid toward the mortgage.
Contributions the Court considers include:
- › Direct financial contributions: property or savings brought into the relationship and earnings during it.
- › Indirect financial contributions: gifts or inheritances from family that went toward the home.
- › Non-financial contributions: renovations, maintenance and running a household.
- › Contributions to the welfare of the family: caring for children and domestic work.
Legal Aid Queensland notes that it may not matter whose name is on the title, or who made the mortgage repayments. The Court looks at the whole picture of what each person put in over the course of the relationship.
What are the time limits for applying for a property settlement in Queensland?
Time limits apply to making a formal application for property orders, and missing them can close off the right to go to court.
The key time limits, according to the Federal Circuit and Family Court of Australia:
- › Married couples: within 12 months of the divorce order taking effect.
- › De facto couples: within two years of the breakdown of the relationship.
- › Out of time: an application can still be made, but the Court's permission is required and it is not automatically granted.
Importantly, property settlement orders can be sought even before a divorce is finalised. A divorce order does not decide issues about property or finances: those are always dealt with separately.
"Leaving the home during separation does not mean you lose your legal interest in it. Rights to a property settlement survive the decision about who lives there in the short term."
Jade Kickbusch, Principal, Brookwater Legal
How does the process of reaching an agreement about the home generally work in Queensland?
Step 1: Talk to us
Get in touch and we will explain how the settlement process generally works and what the next steps look like for your situation.
Step 2: Identify and value the asset pool
We work with you to identify all assets and liabilities, including the family home, other real estate, superannuation, savings and debts. Full financial disclosure is required of both parties from the start of the process, according to the Federal Circuit and Family Court of Australia.
Step 3: Negotiate an agreement or apply to the Court
Where both parties agree on how the home and other assets are divided, we document that as consent orders or a financial agreement, each of which has different legal requirements. Where agreement is not possible, we can assist with an application to the Court.
Step 4: Transfer the title
Once orders are made or an agreement is finalised, we handle the conveyancing side: transferring the title into the correct name, releasing any existing mortgage where required, and registering the changes with Titles Queensland. Our conveyancing team works alongside the family law process so both run together.
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When does the family home not form part of the property settlement?
There are some situations where the family home sits outside, or largely outside, the ordinary settlement process. Understanding these can clarify whether the usual rules apply.
Common situations where the home may be treated differently:
- › Joint tenancy on death: if one co-owner dies, survivorship rules mean the home passes automatically to the surviving owner, not under a will. This is a title law matter, not a settlement matter.
- › Property held in a trust or company: where the home is legally owned by a family trust or company, the Court considers whether that entity is effectively controlled by a party. The home may be treated as a financial resource rather than divisible property, depending on the structure, according to Legal Aid New South Wales.
- › Very short relationships: in short relationships where finances were kept separate, the Court may look at contributions asset by asset rather than across the whole pool, according to Legal Aid Western Australia. Initial contributions, such as a deposit one party brought in, may carry more weight.
- › De facto couples and the geographic requirement: the Court must be satisfied that the de facto relationship broke down with a connection to a participating jurisdiction. Every state and territory except Western Australia participates, according to the Federal Circuit and Family Court of Australia.
What happens to the mortgage while the property settlement is being worked out?
Separating does not remove either party's obligations under a joint home loan. Each co-borrower remains responsible for the full loan amount if the other does not pay, according to Moneysmart. The lender is generally not a party to the settlement and its position does not change simply because a court order has been made between the two borrowers.
Moneysmart's separation checklist includes telling the lender about the separation, reviewing any joint accounts and redraw facilities, and agreeing on how mortgage repayments will be managed in the short term. A lender may be prepared to change the terms of a loan, or temporarily pause or reduce repayments, in cases of hardship, but that is a decision for the lender and any request needs to go directly to them.
Where a property settlement order requires one party to take over the home and release the other from the mortgage, the lender must agree to release the outgoing borrower. That is a separate process involving the lender, the refinancing, and the transfer of the title. A solicitor can coordinate the family law and conveyancing steps.
Frequently Asked Questions
Does moving out of the family home mean you lose your share of it in a Queensland property settlement?
No. A person who leaves the home during separation does not lose their legal rights to a share of it, according to Legal Aid Queensland. Rights to a property settlement survive the decision about who lives in the home in the short term.
Can one party be made to leave the family home during a Queensland property settlement?
Generally no, unless the court has made a sole use and occupation order or a domestic violence protection order has been made, according to Legal Aid Queensland. Both owners generally have the right to occupy a jointly owned property.
How long does a married couple have to apply for property orders in Queensland?
Married couples generally have 12 months from the date the divorce order takes effect to apply for property orders, according to the Federal Circuit and Family Court of Australia. Applications made after that time require the Court's permission, which is not automatically granted.
Is transfer duty payable when the family home is transferred to one party in a Queensland property settlement?
Where a transfer gives effect to a court order or financial agreement made under the Family Law Act, no transfer duty is payable, according to the Queensland Revenue Office. Certain conditions must be met, including that the order or agreement pre-dates the transfer and specifies the property.
What happens to the family home in a Queensland property settlement if both parties cannot agree?
Where parties cannot agree, either may apply to the Federal Circuit and Family Court of Australia for property orders. Pre-action procedures, including attempting dispute resolution where it is safe to do so, are generally required before filing.
Do you need a solicitor to deal with the family home in a property settlement in Springfield or Ipswich QLD?
Legal advice is not required before entering into consent orders, but the Federal Circuit and Family Court of Australia says to get independent legal advice about the effect of the proposed orders. A solicitor can also coordinate the title transfer and mortgage release once an agreement or order is in place.
Does a divorce order automatically deal with the family home in Queensland?
No. The granting of a divorce does not decide issues about property or finances, according to the Federal Circuit and Family Court of Australia. Property settlement is always a separate process and must be dealt with within the time limits that apply.
Your Next Steps
What happens to the family home is often the most emotionally significant part of a property settlement. Getting clear advice early, whether the goal is to keep the home, buy out a former partner or reach an agreement on a sale, means the legal and conveyancing steps can run together without unnecessary delay. For families across Springfield and Ipswich, understanding how the settlement process works is the first step toward a practical outcome.
If a property settlement is on your mind, the next step is a straightforward one. Get in touch with the Brookwater Legal team or call (07) 3437 8555, and we'll talk you through how the process generally works.
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External Resources
- Federal Circuit and Family Court of Australia: Financial or property overview
- Federal Circuit and Family Court of Australia: We have agreed
- Legal Aid Queensland: Protecting your property
- Moneysmart: Divorce and separation financial checklist
- Queensland Revenue Office: Matrimonial transfer duty exemptions
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
