If you are going through a difficult marital separation and divorce, you may wonder whether you can change the locks on your husband in the marital home, essentially locking him out.
The way the Family Court system treats this issue is not straightforward. The process will be vary depending upon whether the premises are owned (or mortgaged) by the parties or are leased (a rental property).
Usually, the terms of a property settlement will describe arrangements for the husband and wife after one party has left the premises. The Courts expect those arrangements to be honored by both parties.
- Where the property is owned or leased by both parties as joint tenants, both parties have the right to change the locks after separating.
- Changing the locks on your husband could have unintended consequences of creating a more acrimonious divorce.
- As long as your former husband still has legal ownership of the property (or is a renting tenant), he will still have a legal right to enter the property (regardless of whether you change the locks).
- In the absence of a completed property settlement and consent orders, your former husband can still try to enter the home without your consent.
- Unless there is immediate risk of family violence, or if there is an AVO or court order in place preventing your husband from coming back into the house, it is best to wait to change the locks on your home after property settlement and consent orders have been filed in court and your husband has moved out of the family home.
Under What Circumstances Can You Legally Change the Locks on Your Husband?
A person can change the locks on the marital home only after:
- the separation has been clearly accepted by both parties.
- another residence for the departing partner has been set up.
- all the possessions of the departing husband have been removed from the home.
When you get a locksmith to change the locks you may need to show ownership rights and possibly some evidence of recent occupation.
This is not always the case and most of the time, tradesmen will not require this information but you need to be prepared to demonstrate this if they ask.
Consider Whether You Should Change the Locks on Your Husband
From a tactical point of view, you should consider whether you really need to change the locks on your husband before proceeding with this course of action.
If your husband doesn’t pose a clear and demonstrable risk to your or your children’s personal safety and he is unlikely to be removing the property from the home, then it may not be necessary.
Changing the locks for frivolous or potentially vindicative reasons is likely to escalate the conflict between the parties quite rapidly.
It may have a negative impact on your children’s access to and relationship with their father.
Whatever course of action you consider, this is not a decision that should be taken lightly.
What Happens if the Husband is Still Listed as an Owner on the Title?
If you are not listed on the property title as the legal owner of the property, it will become more complicated for you to change the locks on your husband.
Usually, but not always, in a divorce, the parties have the property listed in both their names as joint tenants.
When consent orders are signed as part of the divorce proceedings, there may be arrangements describing the intention of one party to buy the other party “out” by transferring the former partner’s (joint tenancy) interest in the property to the new sole owner: the wife.
If the consent orders and property settlement have not been filed in Court, the courts will consider who holds the legal title to the property when considering the legality of the action of changing the locks.
If the husband still has an “equitable right” to that property, the wife will need to produce a court declaration or order which gives her exclusive occupancy to the premises.
If you want to have exclusive occupancy of the property and you want your former husband to move out, you need to obtain urgent legal advice before making any big decisions.
The Only Reasons You Should Change the Locks on Your Husband
- Family violence concerns and you fear for your’s or your children’s safety. In this event, you need to seek immediate expert legal advice.
- You are concerned that your husband could re-enter the property and take your property (money, furniture) without your consent.
How Do the Courts Address this Issue?
If the property is still listed in both parties’ names, the family court system will consider who has the right to exclusive use of the former marital home and they focus upon:
- The financial capacity of the excluded husband to lease another property.
- How any arrangements for the care and welfare of the children will be affected.
- the risk of family violence (by either party).
- whether the parties should consider living under the one roof with limited contact until the property settlement has been concluded which describes who has the rights to occupy the premises.
The Family Court system can make orders about who is allowed to occupy the property in the short or long term.
A Family Violence Order may effectively prevent a husband (or wife) from entering the property (regardless of who is listed as the legal owner).
If you are concerned about your physical safety or that of your children then you should contact the police and apply for a family violence order – but obtain legal advice from a trained professional before doing so.
If the home has a mortgage over it (as most Australian-owned homes do), then the party who has taken responsibility to pay the mortgage and is doing so can argue that they have an exclusive right to occupy the former family home.
This is not always the case, particularly if both parties are still listed on the title as joint tenants.
Generally speaking, no one should be changing locks until the property settlement has been concluded, unless there is a serious risk of domestic abuse or family violence, or theft of personal property.
Our Separation Checklist has useful guidance and practical tips including living arrangements for you during this transition period.
When both parties are joint tenants, they each have the legal right to change the locks on the home (but not against the other joint tenant).
If a wife changes the locks on the home to prevent the husband from entering (and he is still listed as a legal owner), he technically has every right to regain access to the home without the consent of the wife.
What Happens with Rental Properties?
If you are renting a home or apartment and only you are listed on the lease as a tenant, then you can change the locks on your husband, but only after obtaining permission from the landlord.
In a tricky divorce, the landlord cannot unreasonably refuse to allow to do this.
However, the wife will need to provide a spare key to the landlord (or any other tenants listed on the lease).
If your former husband is still listed on the lease as a tenant, you would not be able to change the locks on your husband except where there is a clear and demonstrable risk to your safety which has been proved to the courts and is possibly captured in an applicable family violence order.
Talk to One of Our Experts
Before proceeding you should always seek independent legal advice on your exclusive occupancy rights, unless the threat of family violence is so imminent that you must proceed at once.