24 Mar The Right To Stay In the Family Home After Separation
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.
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.
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?
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.
What is an 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.
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.
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.
If your spouse is abusive or if you fear abuse or violence, it is important to seek advice 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.
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.
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 husband, who is the respondent to this application, 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.