Following the breakdown of a relationship it is common that both spouses may continue to reside in the home together until they have reached a property settlement. However, in some cases it is not practical or possible to do so.
If one party seeks sole occupation of the home, and wants the other to vacate, they can file an Application with the Family Court seeking exclusive occupation.
The Court has a wide discretion to make an order for exclusive occupation. The factors which the Court will take into consideration include:-
- The respective financial position of each of party, and whether it would be practical and financially possible for either party to obtain alternate accommodation;
- The needs of any children;
- The hardship to either party or to the children;
- The conduct of one party which may justify the other party being vacated – for instance, family violence;
- Whether the Order is necessary and/or reasonable.
Importantly, the above considerations are neither fixed nor exhaustive. Ultimately, each case must be decided on its own merits in light of the particular set of facts and circumstances of the case. Overall the Court will seek to make a decision that is just and equitable, or fair.
If there are serious issues of domestic violence you may seek to apply for an Apprehended Domestic Violence Order that may restrain a person from attending upon a particular place(s), which can include the home.
To assess your particular situation and determine whether you can stay in your home after separation, Dorter Family Lawyers & Mediators are expert family lawyers who specialize in all areas of family law and can assist. Please contact us on (02) 9929-8840.
This post is an overview only and should not be considered as legal advice. If there are any matters that you would like us to advise you on, then please contact us.