Who Keeps the House in an ACT Divorce?
Who Keeps the House in an ACT Divorce?
The family home is usually the most valuable asset in an ACT property settlement — and the most emotionally charged. The court does not automatically award it to either party. Instead, it applies the four-step "just and equitable" framework under Section 79 of the Family Law Act 1975 to determine what happens to the property.
In practice, there are four options.
Option 1: One Party Buys Out the Other
The most common outcome. One partner transfers their share of the property to the other, who refinances the joint mortgage into their sole name and pays the departing partner their agreed share of the equity.
How the buyout works in the ACT:
- Agree on the property's current market value (formal valuation from an API-registered valuer, not an online estimate)
- Calculate the equity: market value minus the outstanding mortgage
- Agree on the departing partner's share of the equity
- The retaining partner applies for refinancing — the lender must approve them for the full mortgage on their sole income
- Once refinanced, the lender issues a formal "Release of Liability" removing the departing partner from the loan
The stamp duty question. Normally, a property transfer in the ACT attracts conveyance duty. But transfers under consent orders are exempt under Concession Code 232F, and transfers under binding financial agreements are exempt under 232G (married) or 232H (de facto). You claim the exemption by submitting an online Buyer Verification Declaration to the ACT Revenue Office before lodging the transfer with Access Canberra.
The refinancing trap. A court order assigning the mortgage to one party does not bind the bank. Under contract law, the lender is not a party to family law proceedings. If the retaining partner defaults, the bank can pursue the departing partner for the full outstanding balance — regardless of what the consent orders say. The only protection is obtaining a formal Release of Liability from the lender.
If the retaining partner cannot qualify for the refinance, the buyout falls apart and the property typically must be sold.
Option 2: Sell the Property and Split the Proceeds
The cleanest option when neither party can afford to keep the home, when the property has negative equity, or when both parties want a fresh start.
The property is listed for sale, the mortgage and selling costs are paid from the proceeds, and the net balance is divided according to the agreed percentages.
CGT treatment: The main residence exemption applies if the property was the family home. No capital gains tax is assessed on the sale. For investment properties, CGT applies to any gain since the original purchase — the divorce itself does not create an exemption for investment assets.
Option 3: Deferred Sale (Mesher Order)
One party stays in the home for a defined period — typically until the youngest child turns 18 or finishes high school — after which the property is sold and proceeds divided.
This protects children's stability but creates significant risks:
- Both names stay on the mortgage. Both parties remain jointly and severally liable for the full loan. If the occupying partner misses payments, the departing partner's credit is damaged and the bank can pursue them.
- The departing partner's capital is locked. They cannot access their share of the equity to buy a new property or invest.
- CGT exposure. The departing partner may lose the main residence exemption if they do not qualify under the ATO's six-year absence rule. After six years without living in the property, any subsequent sale triggers CGT on the gain during the absence period.
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Option 4: Exclusive Occupancy Order
A temporary court order granting one party the right to live in the home during ongoing litigation. No ownership change, no title transfer, no stamp duty implications. This is a holding measure, not a long-term solution.
What the Court Considers
When deciding who gets the home (or whether it should be sold), the court weighs:
- Children's housing needs — the parent with primary care often retains the home to maintain stability, but only if they can service the mortgage
- Each party's contributions — financial contributions (deposit, mortgage payments) and non-financial contributions (renovations, maintenance)
- Future earning capacity — can each party realistically afford alternative housing?
- The overall fairness of the split — keeping the house may mean receiving less superannuation or other assets as an offset
ACT-Specific Transfer Steps
Once you have sealed consent orders or a signed BFA:
- Complete the online Buyer Verification Declaration (BVD) with the correct concession code (232F, 232G, or 232H)
- Lodge the Transfer form with Access Canberra's Land Titles Office at the Dickson Specialised Centre or via PEXA
- Pay the lodgement fee (no conveyance duty if the exemption is approved)
- The new title issues in the retaining partner's sole name
The ACT Divorce Financial Split Guide includes a home buyout calculator, a refinancing checklist, and step-by-step instructions for the ACT title transfer and BVD submission process.
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