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Who Gets to Stay in The House During Separation Australia

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

In Australia, determining who gets to stay in the house during separation is a pressing concern for many couples.

In family law separations in Australia, both parties are legally entitled to reside in the family home until a court order states otherwise, irrespective of whose name is on the title.

The law does not mandate either party to vacate the home solely on the other’s demand, emphasising that eviction cannot occur without legal proceedings.

Can You Move Back Into The House After Separation?

Yes, in Australia, you generally can move back into the house after separation, but there are some important factors and potential complications to consider:

  • No Automatic Exclusion: Post-separation, you generally have the right to return to your home. However, this is subject to practical considerations and the overarching principle of the best interests of any children involved.
  • Occupancy Orders: Either party can request a sole occupancy order from the Federal Circuit and Family Court of Australia. The court usually issues such orders in cases of domestic violence and to protect the well-being of children.
  • Practical Considerations: Even if you have the right to return, it might not always be practical or in the best interests of everyone involved:
    • Emotional tension and conflict could further strain the situation, especially if children are present.
    • Returning without reaching an understanding with your ex-partner could be viewed as intimidating or threatening, potentially leading to legal complexities.

What to do if you’re considering moving back in:

  1. Seek Legal Advice: It’s advisable to seek guidance from a family law professional to understand your rights and the implications of your decisions.
  2. Safety First: If you fear for your safety or there is risk of family violence, discuss your concerns with the police and your lawyer and seek an Apprehended Violence Order (AVO) if necessary.
  3. Communicate: Try to open lines of communication with your ex-partner about your intentions if possible. This may lessen conflict and provide an opportunity to come to an understanding about living arrangements.
  4. Alternative Accommodation: Exploring alternative accommodations might be necessary, depending on the dynamics of your situation.

Also read: Separated Under One Roof: Rules You Must Know

The Legal Way to Kick Your Spouse Out of the House – Occupancy Order

Under section 114 of the Family Law Act 1975, the court can issue orders regarding the use or occupancy of the matrimonial home, designed to address situations where cohabitation becomes untenable.

Generally, the court will grant such orders based on factors like child welfare, domestic violence prevention, and the practicality of shared occupancy.

Occupancy Orders and Court Decisions:

  • Factors for Court Consideration: The court assesses several factors when deciding on occupancy orders, including the needs and welfare of children, financial circumstances of both parties, any history of domestic violence, and the overall feasibility of shared occupancy.
  • Outcome of an Occupancy Order: Successful applicants can reside in the property exclusively until a final property settlement is reached.

Your Rights if You Leave the Marital Home:

  • Property Claims: Leaving the marital home does not forfeit your rights to claim a share of the property during the settlement process.
  • Voluntary Departure: Often, one party may choose to leave to reduce stress and conflict, but this does not impact their entitlements in property settlement discussions.

Seek Legal Advice.

For tailored advice and support through your separation process, contacting experienced separation lawyers is strongly recommended. They can provide the necessary guidance and representation to navigate the complexities of family law and ensure your rights and interests are protected.

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.

41 thoughts on “Who Gets to Stay in The House During Separation Australia”

  1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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?


      1. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

  13. I have left my controlling husband, we have 1 child which we share custody of, although he is poisoning his little mind. Every time I go to the house to take my belongings, he snatches things from me and tells me to stop stealing. Am I entitled to take stuff from the house. We used to buy things in bulk. He is also stalking me, my family and friends.

    1. Removing your belongings from the shared home is generally allowed, but it’s advisable to proceed with a clear agreement or seek legal advice to prevent disputes or accusations of theft. To minimise conflict, consider documenting your personal belongings and plan to collect your items when your ex-partner is absent, potentially under the supervision of a police officer or a neutral third party. Consulting with a family lawyer is also highly advised to negotiate a formal division of property, ensuring that you are both clear on who gets what. Regarding concerns of stalking, contacting the police is a recommended step. They can issue an Apprehended Violence Order (AVO) to protect you by restricting him from engaging in stalking behaviors or contacting you.

  14. my ex de-facto partner moved out to his parents. I’m still living in his house that he pays mortgage for. It’s been a month of trying to find a rental to move into and now i’ve been given until end of June, thus totaling 2 months of living in his house. Can he kick me out if i have had no luck in finding a rental? I have a child with me, who is not blood related to him. Things have been amicable until recently when he’s putting a time frame of me to move-out by. it’s very overwhelming and deteriorating my mental well-being. i dont want to be homeless

    1. Hi Sophie, I’m sorry to hear about the stress you are experiencing. In Australian family law, even if the property is solely in your ex-partner’s name, he cannot simply force you to leave without following legal procedures. If you do not leave voluntarily, he may need to apply for a court order to have you legally removed from the property. This is particularly relevant if your presence in the home can be seen as necessary for the well-being of the child living with you, even if the child is not biologically related to him. Seeking legal advice and contacting housing support services (https://www.facs.nsw.gov.au/housing/help) can help you understand your rights and the appropriate steps to take in this situation.

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