Who Gets to Stay in the House During Separation Australia
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.
In most cases, who is on the lease or who is on the title of the house will not be important 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.
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.
Courts for Occupancy Order
- The Family Court or the Federal Circuit Court
- The Domestic and Family Violence Protection Act 2012 in the Magistrates Court for domestic violence cases
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 occupancy order.
If granted, their former spouse would be in breach of the order if they stayed in the home and were therefore legally required to leave and live elsewhere.
This means they will not have access to the marital home during separation.
Key Factors in Occupancy Order Decisions by the Court
- 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 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.
Several points come under the determination of an exclusive occupation order as “proper.”
Other Court Assessments Needed
- The needs of any children in 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 greater than those of the other party.
The applicant, once successful, can live in the house without their spouse until the property has been divided in the finalisation of a divorce.
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.
Your Rights to the Marital Home if You Leave
If you leave the marital home then you still will be able to claim your portion of the marital home during your property settlement.
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.
Contact us today to speak with experienced separation lawyers who can guide you through the process. Let’s discuss your options and find the best path forward for you.
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.