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If you’ve ever walked through a family home on a quiet Saturday, the kind of afternoon when you can hear the tram bells a street over, you’ll know how much a house can hold. During separation, that same walk-through can feel like a stocktake of your whole life: whose name is on the title, who paid what, where the kids will sleep, whether you can afford to stay, and what ‘fair’ even means.
The headline many people don’t hear soon enough is this: there isn’t an automatic rule that says one person ‘gets the house’, and there isn’t a default 50–50 split either. The family home is dealt with as part of a bigger property settlement, and the outcome depends on contributions, future needs and what’s just and equitable in your circumstances.
This is general information for Victorian readers. If you’re in the middle of it, get advice about your specific position, especially where children, family violence, a business, or a complex mortgage are involved.
The question behind the question
When someone asks, ‘Who gets the Melbourne house?’, they’re often really asking three things:
Can I stay put, at least for now?
If I keep the home, what do I have to pay out or trade off?
If we sell, how do we do it without it turning into a second full-time job?
A good settlement usually answers all three.
Divorce is not the same thing as property settlement
Divorce ends the marriage. Property settlement divides assets and debts. They can run alongside each other, but they’re separate steps.
A common trap is thinking you should ‘get the divorce done’ and sort property later. Once your divorce is final, there is a time limit to start court proceedings for property adjustment. For de facto couples, there is also a time limit from separation. If you miss the deadline, you may need the court’s permission to proceed.
Even if you plan to agree on everything, it’s worth recording the agreement properly, so it’s enforceable and so the conveyancing side (the actual title transfer) can be done cleanly.
How a property split is worked out
Australia’s family law is federal, so the same broad approach applies in Victoria. The court, or you by agreement, works towards an outcome that is just and equitable.
In plain terms, the process usually looks like this.
Work out what’s in the pool
This is the assets and liabilities of both parties. The family home is usually the biggest part, but it’s rarely the only piece:
the home and any other real estate (a Southbank apartment, a townhouse in Brunswick, a block in the outer north)
bank accounts, shares, crypto, businesses
superannuation
mortgages, personal loans, tax debts, credit cards
Whose name is on the title or the loan is relevant for the bank and Land Use Victoria, but it doesn’t decide entitlement under family law.
Look at contributions and future needs
Contributions aren’t only about wages. They can include what each person brought in at the start, income during the relationship, renovations and maintenance, caring for children, and supporting a partner’s study or career.
Future needs often shape the ‘house’ outcome, especially where children are involved. Things like care arrangements for children under 18, health, age, income capacity and housing needs can all be weighed up.
Sense-check the result
Even with spreadsheets and valuations, there’s a final question: does the outcome make sense as fair in all the circumstances?
What usually happens to the family home in Melbourne
The emotional pull of the home is real, but the numbers often decide the result. With Melbourne prices where they are, it can be hard for one income to keep the same mortgage, pay rates and insurance, and still cover school costs and day-to-day living.
Most settlements land in one of these lanes.
Sell and divide the proceeds
The home is sold, the mortgage is paid out, and the net proceeds are divided as agreed or ordered. There’s still an agent appraisal, a campaign, open homes and a settlement date. You’re just doing it while also sorting separation arrangements, which is why clear steps and timelines matter.
One person keeps the home and pays the other out
This ‘buy-out’ option usually involves a refinance. One party keeps the home, takes on the mortgage, and pays the other party their share either in cash or by trading off other assets.
Banks reassess serviceability on a single income, even if you’ve been paying the mortgage alone since separation. It’s worth getting a lender conversation early, before you promise anyone you can keep the property.
A delayed sale while the children are younger
Some families agree the children stay in the home for a set period, then the property is sold. It can give kids stability, but it also keeps both parties financially tied together. If you’re considering this, the agreement needs to be detailed about who pays what, how repairs are approved, and what triggers the sale.
Why the title details still matter
Even though entitlement under family law doesn’t come down to the title alone, the way you hold title affects what can happen quickly and what paperwork is needed.
Many couples in Victoria own as joint tenancy or tenants in common. In broad terms, joint tenancy is often used by couples because of the right of survivorship, while tenants in common hold distinct shares. During separation, the structure can matter for estate planning, for what happens if one party dies before settlement, and for how a later transfer is completed.
You might also be dealing with ownership changes that happened during the relationship, such as adding names to property titles after a renovation, a refinance, or a move from renting to buying together. Those changes don’t lock in a settlement percentage, but they do affect the land title record and the lender’s position.
Turning an agreement into a transfer of the title
A signed agreement about ‘who keeps the house’ is only the start. To actually move ownership in Victoria, you need conveyancing steps to transfer the title and, where there’s a mortgage, to satisfy the lender.
Once the family law position is settled and recorded in an enforceable way, the conveyancing work often includes:
checking the title and any restrictions (mortgage, caveat, covenants)
preparing transfer documents and duty paperwork
dealing with the bank, which may involve discharge, refinance, or a part transfer
identity checks and signing, then electronic lodgement
If you want a deeper read on the nuts and bolts, see our guide to transfer of property ownership.
A note about duty and mortgages
People often worry that transferring a home after separation will trigger a big duty bill. Victorian law can provide exemptions in certain family law and relationship breakdown situations, provided the transfer is genuinely because of the breakdown and the paperwork supports the claim. The rules can be technical, so a quick review before lodgement can save a nasty surprise.
Also remember the mortgage. Even if the house is transferred into one name, the lender won’t release a borrower from liability unless the loan is refinanced or formally restructured.
If the other party won’t engage
Non-cooperation often looks like refusing to disclose finances, stalling valuations, ignoring requests to sign documents, or threatening to sell or ‘cash out’ assets.
Start with records. Download statements, keep copies of rates notices and loan statements, and save texts or emails about the property. Courts can also make interim orders to preserve assets where there’s a real risk of them being dealt with, and there is an ongoing duty of financial disclosure in property disputes.
If your immediate problem is the home itself, the question is often whether a sale can be pushed through. Under family law, the court can make orders about sale or transfer as part of a property settlement. Separately, where parties are registered owners and agreement is impossible, there can be property law pathways, including steps to force the sale of jointly owned property.
In some situations, people also ask about a partition application to split or sell jointly held land. Whether that’s suitable depends on the full picture, so get advice before you commit to a strategy.
Melbourne scenarios we see all the time
The auction buy, two incomes, one mortgage
You bought at auction in a fast market, both incomes were needed for the loan, and now one party wants to keep the place ‘for the kids’. The buy-out can work, but only if the refinance is realistic. If it isn’t, a sale can be the cleanest way to free up funds so both parties can secure housing.
The inner north townhouse with a renovation and a redraw
Renovations blur the lines between ‘mine’ and ‘ours’. One person may have brought the deposit, the other may have done hands-on work and carried the mortgage during the build. Valuations and records matter, so you’re not arguing from memory about who paid what, three years and five Bunnings runs ago.
Quick answers to common questions
Is it always 50–50?
No. Some matters end up close to equal, many do not. The percentage depends on contributions and future needs, then a fairness check.
Do I lose my share if I move out?
Moving out doesn’t mean you’ve given up ownership or entitlement. It can affect practical issues like who pays the mortgage and who occupies the home, so get advice early.
Can I stay in the home with the children?
Stability for children is often a key consideration. Staying may be possible for a period, but the broader settlement still has to deal with the other party’s share and the mortgage.
What if my ex refuses to sign transfer papers?
Courts can make orders that allow documents to be signed on a party’s behalf, or otherwise progress a transfer without voluntary signatures. The steps depend on what orders are made and what the land titles requirements are at the time.
What about the mortgage?
A private agreement between you doesn’t bind the bank. If one person keeps the home, refinancing is commonly needed so the departing party is released from the loan.
Practical next steps if the house is on the line
If you’re trying to work out whether you can keep the home, these steps save time and reduce stress:
Get a current valuation, not an old estimate from when you separated.
Ask your lender (or broker) what you could borrow on your income alone, before you promise a buy-out.
List all debts, not only the mortgage, and be clear about who is paying what right now.
Gather documents early: title, rates, insurance, loan statements, and key renovation invoices.
Get the agreement properly documented before you start conveyancing steps, so everyone is clear on deadlines and signing.
Speak with Pearson Chambers Conveyancing
When a property settlement says ‘transfer the home into one name’ or ‘sell and split’, the next step is making the paperwork real, so the title changes, the lender is dealt with, and duty is handled correctly.
If you’d like help with the conveyancing side of a relationship breakdown, get in touch with Pearson Chambers Conveyancing. We’ll talk you through the practical steps and can also provide a complimentary Section 32 contract review if you’re selling, buying, or you’ve been handed a contract for your next place.
Email contact@pearsonchambers.com.au.
This article is general information only and isn’t legal advice.