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The Right To Stay In the Family Home After Separation
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When Your Ex Won’t Move Out
It is easy to think of separation as exactly that: a breakdown of the relationship and therefore a physical separation as one or both parties move out of what was once their family home.
Sometimes, however, that matrimonial home becomes a battleground as ex-spouses decide to separate but then cannot agree on who should move out. It can also be the first step in separating from your spouse.
This can cause all sorts of problems in the already difficult and stressful time of separation and divorce.
It is not necessary for former spouses to stop living together after deciding to separate, and some people may choose to continue living separated under the same roof for quite some time.
This does not work for the majority of separated couples, and many find that creating physical distance and starting to live independent lives makes the separation process easier.
But what happens if your ex refuses to move out of the house?
FAQ Rights to the house during Separation
Question: Who gets to stay in the house during separation?
There is no presumption as to who can stay in the house during separation.
In most cases, who is on the lease or who is on the title of the house will not be important as to determine who gets to stay in the house during separation. That is because family law has different principles than commercial law.
Without an order from the court, you cannot kick your spouse out of the house.
Question: What are my rights if I leave the marital home?
If you leave the marital home then you still will be able to claim your portion of the marital home during your property settlement.
Question: Who has to leave the house in a divorce?
You are not forced to leave the house in a divorce unless there is a court order in place.
Question: Who has rights to all of the property after separation?
Rights to the property after separation will depend on what occurs during your property settlement. If you have personal belongings that you want to retain, we strongly recommend that you retain possession of these items to avoid them being retained by your ex.
Who gets the Family Home when you separate?
In the event of a family law separation, both parties are legally entitled to live in the family home.
It does not matter whose name is on the ownership of the house.
There is no presumption that the wife or the husband has to leave the house.
One party cannot force the other to leave, and a person is not required to leave the house just because the other wishes it. Under the law, you cannot kick each other out.
If there are no safety concerns, if no court orders have been breached and if there is no kind of crime taking place, the removal of one occupant from the residence cannot be enforced by the police either.
Normally, one party decides to leave the property to alleviate what may potentially be a stressful situation.
In circumstances of domestic violence, the situation is treated differently.
Contact emergency services or the police if you or your children are at risk of being harmed.
The legal way to kick your spouse out of the house – occupancy order
Occupancy orders are sought under section 114 of the Family Law Act 1975.
This section of the Act gives the court the power to make injunctions, including “an injunction relating to the use or occupancy of the matrimonial home.”
An injunction is a court order that prevents someone from performing or requires someone to perform, a particular act.
A person may seek an occupancy order in the Family Court or in the Federal Circuit Court.
Enforcing the exclusion of a party from the family home is considered a very serious matter by the court.
It is most often ordered when a person is in danger.
A person wanting sole occupancy of a shared home may obtain an exclusive occupation order.
If granted, their former spouse would be in breach of the order if they stayed in the home and is therefore legally required to leave and live elsewhere.
This means they will not have access to the marital home during separation.
In the case of domestic violence, this order can also be sought under the Domestic and Family Violence Protection Act 2012 in the Magistrates Court.
When determining an application for an occupancy order, the court will make their decision based on two points:
- Should the property be occupied by one party; and
- If so, which party should leave the property.
The person seeking the injunction is responsible for establishing their case for sole occupancy.
The court must decide that it is “proper” to make an exclusive occupation order.
This means determining whether or not it is reasonable, sensible or practical to expect the parties to remain living in the one home.
As part of this, the court will also decide whether the order is necessary or whether it is simply being made for convenience. Access to the marital home during separation may be an important requirement for certain people and less important for others.
There are several points that come under the determination of an exclusive occupation order as “proper.”
The court will assess:
- The needs of any children of the relationship
- The means and needs of both former partners, including their income and financial situation, the existence and availability of alternative accommodation, and to what extent the home is a significant part of any business that a party owns or runs
- The hardship to either party and the hardship to any children
- The conduct of the parties
- Any physical assault or violence against one of the parties
An occupancy order is granted when the needs of the applicant are judged to be clearly greater than those of the other party.
The applicant, once successful, is able to live in the house without their spouse until the property has been divided in the finalisation of a divorce.
Former partners might eventually be able to decide who is leaving the home without the intervention of the court. For the person leaving, their entitlement to a share of the property during divorce proceedings will not be affected.
Can I kick my spouse out of the house if there is domestic abuse?
If your spouse is abusive or if you fear abuse or violence, it is important to seek advice from your family law attorney immediately.
In terms of exclusive occupation orders, it is highly likely the court will grant an applicant their occupancy order if their partner is making threats against them, especially if any children are affected.
Leaving an abusive relationship is particularly hard, but help is available.
As it is a crime, domestic abuse is dealt with in the Magistrates Court. This includes occupancy orders that involve violent or threatening situations.
However, the Family Court and the Federal Circuit Court will manage other aspects of separation and divorce.
An Apprehended Violence Order (AVO) can be made against a spouse or former spouse to protect you from violence, harassment and intimidation.
The court can add different conditions to restrict the other person’s behaviour, such as prohibiting them from coming near or going into places where you live or work.
Children of the Relationship
For most couples, separations are difficult times that involve significant emotional stress.
There may often be open hostility between ex-partners, and this can build up further and further if both people cannot agree on who should leave and who should stay in the matrimonial home.
This type of conflict, whether it is explicit or conveyed more through silence and coldness, can have a serious impact on children in the household.
Young children in particular are less able to understand the situation, and they can quickly feel the emotional stress.
Trying to come to an agreement about who should leave the home is often complicated because of children of the relationship.
Generally, neither party wishes to stop spending as much time with their children.
A lack of agreement on child custody after separation and in the process of a divorce will often mean going to court to settle that issue as well.
A proven determination to stay in the family home with the child or children may influence future custody hearings.
In the event of one ex-spouse eventually moving out of the family home, they may be required to pay child support if they are they are the party spending less time with the children.
Spousal Maintenance
Financial issues can become a major problem in the event of separation and divorce, and, after deciding who moves out of the house, one party may also be liable to pay spousal maintenance.
Finding a new place to live can create a lot of financial strain, and if appropriate housing is more expensive than a person can reasonably afford, their ex-partner may be required to pay them financial support.
On the other hand, the party staying in the family home will in most circumstances become the primary carer of any children.
This will reduce their income earning capacity and therefore their former partner may be ordered to pay spousal maintenance.
Spousal maintenance is different from child support, which is paid expressly for the benefit of the children.
Both ex-spouses have an equal legal responsibility to support and maintain each as far as they are able, based on their own income.
The amount of financial support paid is dependent upon the income and financial resources of the paying party.
If cost is a key problem in who stays in the family home and who goes to live elsewhere, a final result may involve one party paying spousal maintenance.
Speak to a family law lawyer today about any concerns you have in relation to spousal maintenance.
Zegar & Zegar 2015
In one 2015 case, the Family Court granted a woman’s request for sole occupancy of the matrimonial home.
The applicant sought exclusive occupation of the home for an interim period of one month during court proceedings.
She made the occupancy order application on the main basis that she had been the victim of an incident of domestic violence.
Even though an Apprehended Violence Order application made in the local court had been dismissed, the judge made it clear that this did not mean such allegations would be dismissed in the Family Court.
The estranged husband rights to stay in the home were removed.
The husband owned several other residences, whereas the applicant was only able to continue living in her current home.
The judge deemed it appropriate that the woman live in the family home with her 15-year-old daughter for the interim period of one month.
The husband was not to enter or seek to reside in the home for that time and was required to make arrangements with his wife’s solicitors if he wished to collect any personal items from the residence.
Any Questions?
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
26 thoughts on “The Right To Stay In the Family Home After Separation”
Also spousal maintenance when ex WONT support or contribute herself, is NOT the sane as CAN’T support herself. Maybe many women with children DO work and contribute in a marriage.
My husband has been relying on me to pay for everything and do all the domestic work in our house plus raise our children, he even forced me back to the workforce early from my second baby but doesn’t pay himself a wage and owns 3 businesses all in the trust he made me sign my name off over two years ago. If we divorce,I technically will be the high income earner. Will the courts look at his trust as asset? He chooses not to pay himself a salary and purposely reinvests every dollar to make a loss year on year, meantime the “trust” is asset wealthy. Im afraid if we D he’ll also end up entitle to half my super and potentially spousal maintenance?
I feel completely helpless.
Please help, victim of financial abuse 🙏
Hi, given the complexities of your matter, it would be best to consult with one of our family lawyers to receive comprehensive advice tailored to your circumstances.
I’ve been kicked out of my home and want to go back in. can i change the locks?
Hi Michael. Changing the locks can often be a futile move, as the other party could simply change the locks back. If one party has left the property, then tries to enter it again, it normally results in police being called to the property. The police MAY charge you depending on how you are acting and if you are being aggressive.
Hi Hayder, if the spouse (husband) who remained in the property moves out (and takes the beds, clothing etc), so that the property is now vacant, can the other spouse (wife) who originally moved out (because of a hostile environment) and is now homeless (couch surfing), return to the vacant property? The house/property is owned equally by both parties and there are no children. The financial settlement has not been settled and could go on for months/years, as the husband keeps stalling, even though he has moved on with another partner, is living with her and they are expecting a baby. Both parties are equal financially, but the wife can’t find a property to rent (afford), because of the rental crisis.
There is a strong argument that you would be able to move back in and live there until the property settlement is finalised. The next question would be – who would have to make the payments for the house? This questions is a little bit more nuanced and may take you into the territory of spousal maintenance https://justicefamilylawyers.com.au/faq/what-is-spousal-maintenance/
Hi my ex de facto partner has threaten to change locks on a granny flat I reside at on the property there has been no violence of the sort very calm environment does have a right to do this without a court order
Hi Warren – if your ex changes the locks on your house you will have to deal with the practacalities of getting back in the house. You would be able to change the locks yourself if you are on the lease or own the residence.
Thank you for sharing this post i feel so much more reassured now.
If one party has never lived in a house that they are still paying half the mortgage for, are they able to move back into the family home whilst going through separation? Can this be legally forced at the detriment to the other party?
Hi Chelle, i suggest you read this post: https://justicefamilylawyers.com.au/family-law/the-right-to-stay-in-the-family-home-after-separation/
What if an ex partner has not let you see your kids for 2 months and refused mediation. Then because she refused mediation you said you want to take it to court so she goes and gets an avo and gets you kicked out of your home obvious spite but was still granted on just her fake claims of abuse with no proof how is that justice. That’s not law.
Hi, it sounds very unfair and it is something that we hear occurs quite frequently. You will have to defend the AVO in court and also request time with the children through the FCFCOA. We can assist if you require legal help.
Hi, harder,
if my husband wants me to move out from the apartment to separate , coz now is under his name. Does he have right to do it?Or only the court can order it? Or can I apply to separate under the same roof coz I can’t afford to rent an apartment?
Thanks.
Hi, he will need to obtain a court order to do this.
Hi, I need to get some advice. If there is an AVO in place against my husband with conditions 1abc, 2 and 9abc and he is in custody but if his mother is still residing with me and I have concerns for my kids and my safety with her residing in the house. I am living in the house for which mortgage is on both my and my husband name. However, he is not paying anything. How can I evict my mother in law from the house?
Hi, you can apply for a sole occupation order so that you have sole use of the house.
My husband hits, shoves me and threatens to kill me during an argument. I asked for a separation and for him to leave but he refused. I’ve not involved the police yet because I’m afraid of his profession. I really need to stay in the house because we have three children and one has a disability and moving will impact on him.
If I file to obtain sole occupancy, will DV record affect his medical profession? Also will he continue paying for the mortgage as I can’t afford to pay the full amount of the mortgage because it’s a big house.
Hi
You will need to apply for a sole occupancy order and spousal maintenance in order to do this.
You can obtain a sole occupancy order without inovlving the police. You can do it through the family court.
Hi Hayder, if the spouse (husband) remained in the family home as the (wife) was originally staying between two homes (assisting with care of her elderly father, 6 mins up the road) and eventually forced out of the family home because of a hostile environment and is now wanting to return to the family property as the wife resides in a bedroom where she also works four days a week. This is not adequate living/working conditions. How does the spouse (wife) go about moving back to the family home?
The house/property is owned equally by both parties and there is one adult child (19) who works with the spouse (husband) his father, staying at the home. The financial settlement has not been settled and could go on for months/years, as the husband keeps stalling, even though he has obviously moved on with another partner. He is not home most nights and returning in the early hours of the mornings to collect the son and organise himself for work during the week. He is absent from the family home most if not all weekends.
The spouse (husband) income is almost double the wife’s income and the mortgage + rates equate to $160 per week. The wife cannot afford a rental due to the housing crisis and the cost of rent at approx $600per week.
The spouse (husband) has all expenses paid for his work vehicle and has very little outlay compared to the wife.
The (spouse) husband has 13 years working life and the spouse (wife) has 8 years
In this situation, it may be beneficial for the wife to negotiate an interim agreement with the husband to allow her to return to the home while the financial settlement is being resolved. A mediator or family dispute resolution practitioner could be engaged to assist with this.
In some cases, one party can apply for an order for exclusive occupation of the family home. Factors that might be considered include the welfare of the parties, the conduct of the parties (e.g., if the home environment was made hostile or unsafe) and financial circumstances. For this to occur, it is important to be able to provide documentation and evidence that supports the equitability and necessity for sole occupation.
Given the disparity in incomes and financial circumstances, the wife might also consider seeking spousal maintenance from the husband. This would involve the husband providing financial support to the wife to help cover her reasonable expenses.
It is highly recommended that the wife consults with an experienced family lawyer to clearly understand her legal rights and determine the best course of action.
What services does “justicefamilylawyers” offer in the field of family law?
At Justice Family Lawyers, we have a team of experienced solicitors specialised in family law who can assist with matters involving separation, divorce, child custody, property settlement, conveyancing, estate administration and domestic violence. Our services include providing comprehensive and tailored legal advice on family law matters, negotiating agreements between parties to resolve disputes, drafting court documents and agreements and attending mediations and court hearings on our clients’ behalf. For more detailed information about our services, please reach out to our office directly.
Hi Hayder! My ex wife originally agreed to an offer amicably, She has since taken back her stand on this and we are going through an entire financial disclosure process. The original offer was 55% in her favour. She now is making up financial abuse allegations and stopped paying towards everything including basic utilities but still lives under the same roof. It is also evident delay tactics are being used in terms of responding to emails. With Christmas around my corner what are my options please?
Hi Bryan, we recommend that you get in touch with our office to schedule an initial consultation with an experienced family lawyer. During this consult, the lawyer will be able to advise you on your best options moving forward and the likely outcomes.