When couples go their separate ways, emotions run high and uncertainties abound. Among the many important decisions that need to be made during this time is who gets to keep on living in the family home.
There’s no one right answer to this question, and every case is different.
As family lawyers, we typically see one of the following situations:
- One party is excluded (e.g. by being ‘locked out’) from the relationship residence;
- Both parties remain in the relationship residence, but one party seeks that the other moves out, seeking sole occupation of that home, contending that to remain under the one roof together is untenable.
Excluding a spouse
This situation is most commonly seen when the title of the relationship residence stands in the name of one party alone. This allows them to literally ‘change the locks’, preventing the other spouse’s access.
The first thing to observe is that ‘changing the locks’ and excluding a spouse from that which has been their home will be perceived as an act of aggression, so it is not to be done lightly. It can escalate the tension in a case, which can have other consequences, often delaying the resolution of the case. There are often better ways – making funds available for the establishment of separate accommodation for one party, and giving time for a spouse to transition into alternative accommodation. Secondly, kicking a spouse out of their home, if they have no resources and alternative accommodation options, can comprise a form of family violence.
Know also that, if a spouse is ‘locked out’, they can still seek an order permitting them to reside in that residence, in 1 of 2 ways:-
- Firstly, seeking a sole occupation order, legally permitting them to live in the residence. This order can be sought even by the spouse who is not on the title of the property ;
- Secondly, in situations involving family violence, seeking a Protection Order, with an ‘ouster’ provision, requiring the spouse who locked them out to remain away from the property. For this option to be pursued, a Court would need to make a finding of fact that an act of family violence has been perpetrated and that the aggrieved spouse needs to be protected from further such incidents.
Sole occupation orders
An exclusive occupation order is an interim order that restrains your former partner from entering or remaining in the family home or relationship residence. It does not affect the underlying property rights or ownership.
If the order is granted, the applicant will be able to live in the property without their ex-partner until the final property settlement is struck, or until the order is varied by the Court.
In deciding whether to grant one party the right to use and occupy a property, to the exclusion of the other spouse, the Court will consider factors such as:
- 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;
- Practical issues, such as the extent to which 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
Note that a Court is not obliged to make such an order, and in some cases, will decline to do so, leaving both parties living under one roof until they strike their property settlement.
What about domestic violence?
While it can be difficult to force an ex-partner to leave the family home, the situation changes when there is a risk of domestic violence.
Where family violence has been perpetrated against you, you can apply to the Court for a Protection Order, and as part of this process, seek an ouster provision – this requires the offending spouse to remain away from the relationship home. This Order will remain in force until it is varied by the Court.
Even if none of the above situations is at large, living together under the same roof could be emotionally stressful. So you might be wondering what are your rights if you decide to leave the family home.
Your rights if you leave the relationship home
If you decide to move out, you don’t diminish your rights to the property. Your legal rights to ownership of a property remain, even if you are not living in that property. This means that any financial claim you are eligible to make can be pursued, regardless of your physical presence in the home.
Also, you can return to the relationship home at any point during the separation, as long as there is no court order preventing you from doing so. However, it’s important to consider that appearing unannounced can potentially lead to conflicts and further complications – for example, your former partner might then seek an order for sole occupation. Note also, that the locks may have been changed by your former partner after you initially moved out.
What about household bills?
Well, regardless of your decision to stay or leave, your financial responsibilities as a property owner or tenant persist. These bills will continue, irrespective of who is actually living on the property. A sensible arrangement will need to be made as to the sharing of expenses sufficient to see the property maintained during the post-separation period – this might include sharing -the home loan, council rates, strata levies, or any other expenses. That sharing may not necessarily be equal and may need to take into account the fact that one party is paying to live elsewhere and that the spouses may be earning different levels of income.
What about a nesting arrangement?
If you have children, you might have heard about a ‘nesting’ arrangement. A nesting arrangement is a type of co-parenting where children remain in the family home, while their parents take turns living with them. While one parent is living with the children, the other parent resides elsewhere. Effectively, the children ‘stay put’, and the parents move in an out of the family home as and when they care for the children.
This arrangement allows for stability and continuity in the children’s lives, in that it maintains their ‘home base’. However, it requires a high level of cooperation between the parents, so you and your ex-partner need to be able to communicate effectively and co-parent well for a nesting arrangement to be viable. It is therefore an arrangement which does not suit, or work for, every family.
BGM Family Lawyers is a family law firm serving the Gold Coast. We’ve helped many couples navigate separation and we can help you too. Get in touch by emailing info.bgm@bgm.legal or calling 1300 BGM LAW.
