Who Keeps the House in a Queensland Divorce

The family home is usually the most valuable asset in a Queensland property pool, and it's the one that generates the most conflict. There's no automatic rule about who keeps it. The outcome depends on your financial capacity, whether children are involved, and which option produces a just and equitable result under the four-step property settlement framework.

Option 1: Sell the Property and Split the Proceeds

The cleanest option. List the property, discharge the mortgage at settlement, and divide the net proceeds according to your agreed percentage split.

This works well when neither party can afford to refinance alone, or when both want a fresh start. The downside is real estate agent commissions (typically 2-3% in Queensland), conveyancing fees, and the risk of selling in a weak market.

Option 2: One Spouse Buys Out the Other

The more common arrangement when children are involved. The staying spouse purchases the departing spouse's share of equity and transfers title into their sole name.

The critical step most people miss: you must refinance the mortgage into your name alone. If you transfer title but leave the mortgage as a joint loan, the departing spouse remains 100% liable to the lender under joint and several liability. Banks don't care what your consent orders say — if payments stop, they'll pursue both borrowers.

Before committing to this option, get pre-approval from your lender. You'll need to demonstrate sufficient income to service the mortgage on a single salary. If the bank won't approve the refinance, this option falls apart.

Option 3: Deferred Sale

One spouse (usually the primary carer of minor children) stays in the home for a set period — often until the youngest child finishes Year 12 — after which the property is sold and proceeds split.

This protects children's stability but ties up the departing spouse's capital for years. During that time, they may struggle to secure a new mortgage because the existing joint liability reduces their borrowing capacity.

Exclusive Occupancy Orders

If co-habitation has become unsafe or unreasonable, either party can apply to the FCFCOA under Section 114 of the Family Law Act 1975 for an exclusive occupancy order. This forces one party to vacate the home temporarily.

The court considers physical safety (particularly where family violence is present), the housing needs of children, each party's ability to find alternative accommodation, and ownership status — though a non-owner can still be granted exclusive occupation.

An exclusive occupancy order is an interim measure. It doesn't determine who ultimately keeps the house in the final property settlement.

The Mortgage Problem

Joint mortgage liability survives separation and even divorce. Until the loan is formally refinanced into one name, both parties remain on the hook. If the spouse who kept the house stops paying, the lender can and will pursue the other borrower.

Your consent orders should include a clause requiring the staying spouse to refinance within a specified timeframe (typically 60-90 days after orders are sealed). If refinancing fails, include a fallback clause requiring the property to be listed for sale.

Stamp Duty Exemption on Transfer

Queensland offers a 100% transfer duty exemption under Section 424 of the Duties Act 2001 (Qld) when property is transferred following a relationship breakdown — but only if the transfer is executed under sealed consent orders or a valid binding financial agreement. An informal agreement won't qualify.

The exemption is claimed through the Queensland Revenue Office (QRO) online portal using a Form D2.2 dutiable transaction statement.

The Queensland Financial Split Guide includes a complete family home decision framework, buyout calculation worksheet, and step-by-step instructions for claiming the QLD stamp duty exemption.

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