Two’s a crowd: how do we decide who should move out after separation?
One of the most immediate issues to deal with, particularly after a sudden or acrimonious split, is who’s going to be packing their bags and finding a rental. This is a short-term issue, completely separate to the question of who will actually retain ownership of the family home – the question is only who lives where while the parties are dividing up their property.
It’s easy to assume that, where only one of the parties is the legal owner of the house, that person is at liberty to kick their ex-partner out. In fact, where parties are married or in a long-term relationship, generally both parties are entitled to live in the marital home regardless of which of them actually owns the property.
Usually, one of two things will happen:
1. The parties agree between themselves who will leave and who will stay, or
2. The parties remain living under one roof until they have finalised their property settlement.
The latter option, known as ‘separation under one roof’ is commonly taken up out of consideration of the parties’ financial circumstances, with varying levels of success. If the parties do not get along, or if either of them re-partners, it can become untenable.
So what happens if neither party agrees to leave?
There are circumstances where the Court will be able to step in on an interim (i.e. short-term) basis. Under section 114 of the Family Law Act, the Court has the power to make an ‘exclusive occupancy order’, a type of injunction allowing one party to live in the property to the exclusion of the other party.
These types of orders can be very difficult to obtain. An order preventing someone from living in their own home is a serious measure with the potential to cause a great deal of inconvenience. The Court will not make them unless the circumstances demand it.
In deciding whether an order is necessary, the Court goes through a two-step process:
1. Is an order for exclusive occupation necessary?
2. If so, which party should have the right to occupy the house?
The Court has a broad discretion to make the order if it is ‘proper’ in the circumstances. However, there are a few particular issues it will look at:
1. Needs of any children.
This does not just include the material and financial needs of the children, such as food, clothing, and other expenses, but also their emotional and intellectual needs. In Belcher & Gardner, one of the reasons that the Court rejected the husband’s application for exclusive occupancy of a holiday house was because if he was the sole occupant, the children would be less likely to use it, due to the strained relationship.
For information on relocating with children, click here.
2. Means and needs of the parties
This refers to the parties’ abilities to meet their own needs and expenses. As a very general rule of thumb, if one or both parties has multiple properties, significant financial resources, or significant income at their disposal it may be easier to obtain an exclusive occupancy order, due to the relative ease of securing alternative accommodation.
3. Hardship to either party or to children
This could include financial hardship if forced to move out, or the hardship of being subjected to abuse or family violence. If the presence of one parent, or the relationship between the parents, is causing danger or harm to the children this will often be a critical factor.
4. Conduct of the parties
The conduct of one party may justify the other party in asking for them to be removed from the home. In the case of Healey, the Court held that conduct which is simply annoying is not sufficient. This question refers more to physical assaults or abuse, or some other behaviour that causes serious harm or fear.
These grounds are a guideline only. The circumstances of each case will determine what is and is not relevant. The general consideration to bear in mind is that the Court won’t make these Orders just to make someone’s life easier. Unless there is some form of family violence or abuse involved, the parties will usually have to sort matters out themselves.
by Sophie Bouhalis
This article is general in nature and is not legal advice. If you need help with a family law matter, Voice Lawyers is here for you. Please contact us on 02 9261 1954 or use the link on our website to book a consultation.