Who Gets to Stay in the House During Separation Australia

Who Gets to Stay in the House During Separation | Justice Family Lawyers

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The Right To Stay In the Family Home After Separation

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.

Finger art of family during quarrel. Concept of man and woman can not divide house after divorce.

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.

Also read: 11 Steps to Follow: A Comprehensive Separation Checklist Australia

where will the children live after separation

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.

Any Questions?
Speak to One of Our Lawyers.

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    37 thoughts on “Who Gets to Stay in the House During Separation Australia”

    1. wpua -

      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.

      1. wpua -

        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 🙏

        1. wpua -

          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.

      1. DSC08564 1 -

        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.

        1. wpua -

          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.

    2. wpua -

      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

      1. DSC08564 1 -

        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.

    3. wpua -

      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?

    4. wpua -

      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.

      1. DSC08564 1 -

        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.

    5. wpua -

      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.

        1. wpua -

          I have similar situation , my husband says he will give ne an order from the court to vacate
          Does the court gives the order to move out even if i cant afford to pay the rent as i am not earning enough?

          1. wpua -

            The court aims to make decisions that are fair to all parties involved, especially where there is evidence of financial hardship and if children are concerned. Given your situation, it’s advisable to seek legal advice from a family law solicitor. They can provide you with specific guidance, represent your interests in court, and help you understand your rights and options.

    6. wpua -

      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?

    7. wpua -

      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.

      1. DSC08564 1 -

        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.

    8. wpua -

      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

      1. wpua -

        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.

      1. wpua -

        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.

    9. wpua -

      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?

      1. wpua -

        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.

    10. wpua -

      Hi, the family home settles in a month and the ex (husband) doesn’t look like he will move out by settlment.
      the house is solely in my name.
      what can i do to get him out?

      1. wpua -

        Hi, if the house is solely in your name and there are no pending property settlement cases or orders granting him rights to the property, you may need to serve a formal notice to vacate and apply for a court order to facilitate his eviction. However, before proceeding it is recommended to seek legal advice to ensure that you take the appropriate steps in accordance with your situation and the law.

    11. wpua -

      Hi Hayder,

      I got separated from my Ex 2 years back . I stepped out of the house with 2 kids since there were lot of emotional abuse and DV , Had complaint to police and I moved out(emotional decision – regretting now) . Now its been 2 years he is residing at the home paying EMI and I am living in rented place. Had multiple attempts calling for mediation to sort out the property issues but he didn’t cooperate. Spent enough money in consulting with solicitor but all went in pain. Since we already crossed 1 year period from divorce we have to go court now . Is there any law
      1.where i can ask him to vacate the house and put it on rent until we sort the issue for whom the house belongs to and how much pool ?
      2. Since he is paying EMI for 2 years can he claim more than me or take the ownership ?
      3.What kind of legal actions i can take since he is not moving out the house?

        1. wpua -

          My partner and his ex own and currently live in their home (separated under same roof). Can I legally move in to their home? My partner wants me there, however his ex obviously doesn’t and can be quite hostile towards me.

    12. wpua -

      Hi, my partner has recently divorced from his ex- wife. Prior to the divorce settlement, he moved out and rented an apartment. He has been renting his house to his ex wife & new partner. Prior to the divorce settlement, they had a written agreement between themselves stating that my partner would pay her $50k plus leave her all the furniture. My partner is now wanting to raise the rent as it was well below average & is looking to sell the house within the next 6 months. His ex wife is now threatening to take him for the house & his super. Does he have a leg to stand on?

      1. DSC08564 1 -

        The written agreement they made before the divorce settlement, where he agreed to pay $50k and leave all the furniture, must be EITHER an application for consent orders or a BFA. If it is not either of them, then it cannot be relied upon.

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    Hayder Shkara

    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.