Separation and the Family Home: Can I Stay in the House?
Navigating the breakdown of a marriage or de facto relationship in Australia, whether in NSW or another State, is a challenging and emotionally turbulent time for people. One of the most pressing questions people have in the midst of separation is ‘who gets to stay in the family house after separation?’ There is not a straightforward answer to this question and there are a number of legal and non-legal considerations to be taken into account.
Who gets to stay?
Under Australian family law, the general principle is that both partners have a right to remain living in the home, regardless of whose name is on the lease or on the property title. In the event that the property is jointly owned or the tenancy agreement is in both names, a party cannot force the other party to move out of the house or change the locks without notice, unless by court order.
In circumstances where a property is held by one party, the other may still have a right to remain living there temporarily, especially if there are children of the relationship or the non-owner party has made financial or non-financial contributions to the relationship or property.
What are my rights if I choose to leave the family home?
Property settlement rights arise under the Family Law Act 1975 (Cth), which allows parties to negotiate or apply for financial orders regardless of who remains living in the home. Leaving the family home does not preclude a party from initiating a property settlement with their former partner. Many people leave the family home on a voluntary basis to reduce stress and conflict, and this does not present a barrier as to initiating a settlement.
More information about property settlements is available here.
Separation Under the Same Roof
It is possible to be legally separated from your partner while still living in the same house. This is becoming a common occurrence due to increasing financial pressure and shared commitments to co-parenting.
It is important to consider your safety, as well as the safety of any children involved when considering remaining in the family home following separation. We recommend that you:
Define personal spaces within the home – for example you should not enter your former partner’s bedroom without permission and vice versa
Remain respectful of each other
Limit communication to logistical manners
Residing under the same roof as your former partner can be a workable solution in the short term, however it is important to consider your wellbeing and the impact of any children involved and it is not always suitable.
If you are concerned about how your living arrangements affects your children, our team of expert family lawyers can help you understand your options before taking any next steps. Contact us here.
Nesting Arrangements
An alternate arrangement which is increasing in popularity is a ‘nesting arrangement’. This is a shared parenting arrangement where the children remain living in the family home, and the parents take turns moving in and out according to a set schedule as agreed to the separated parents.
A nesting arrangement can work well when parents are amicable and are able to communicate effectively, and parents should strongly consider whether it is appropriate for their family before entering into it.
Exclusive Occupation
Exclusive occupation orders may be made pursuant to the court’s powers under the Family Law Act 1975 (Cth). If a mutual agreement cannot be reached (whether through mediation or negotiations) as to who should live in the home after separation, it may become necessary to file an application with the court for what is known as ‘exclusive occupation orders’. The court can make orders for one party to solely occupy the home, with the other party to vacate the property and be restrained from re-entering the home. Exclusive occupation orders are not permanent arrangements and are made to last for a set period of time until final settlement of the matter. The court can make exclusive occupation orders in circumstances where there are:
Domestic violence and safety concerns
Serious tension and conflict in the home, particularly when there are children of the relationship and parenting arrangements are in dispute
Legal issues over ownership or contributions
A failure of a party to meet mortgage repayments or other expenses associated with the property
Find out more about restraints and injunctions here.
Next Steps
It is important to obtain legal advice soon after you have separated from your former partner. If you are considering separating from your partner or have recently separated, our team at Dorter Family Lawyers & Mediators are able to assist you. Please contact us or give us a call on 02 9929 8840 to discuss your matter.
Prepared by Madeleine Geoghegan and Rebekah Dorter at Dorter Family Lawyers & Mediators. This article provides general information only and does not constitute legal advice. For strategic advice tailored to your situation, contact our team today.
