LawTalk Blog

Separated? Who gets to live in the former family home?

After separation who stays in the home

It’s a big decision to make the choice to separate from your partner.  It’s most usual, once you’ve made that decision, for one of you to leave the former matrimonial home.  However, this is not always the case.

Sometimes parties elect to separate and stay living under the same roof.  If both you and your partner are the registered owners or occupiers of the home, then you are both entitled to remain living under the same roof, unless there is a court order stating otherwise.

If one of the parties has suffered domestic violence during the relationship, then often an application for an intervention order will be made, which has the effect of then prohibiting one of the parties from returning to the former matrimonial home.  In these particular cases, it is not uncommon for the person who remains in the home to change the locks on the home.

If both parties cannot come to an agreement on who should live in the home, you may make an application to the Federal Circuit Court for an injunction in order to have exclusive occupation of the former family home.

Applications for exclusive occupation

If an application is made for exclusive occupation, the Court will consider the following:

  1. The practicality of granting occupation, having regard to the realities of family life.
  2. The income and financial resources of the parties to meet the costs of relocation; whether any alternative accommodation is available for either party.
  3. The best interests and needs of any children of the relationship.
  4. The conduct of the parties, such as threats of violence.  Where a party has been threatened with violence, it is usual that the innocent party will remain in the home.

When deciding who should remain in these circumstances, it is immaterial who the registered owner of the property is.  The Court will consider what is fair and just in the circumstances.

Summary

There are many matters that a court will take into consideration when deciding who should remain in the family home.  The court will balance all relevant factors of the family and the parties’ employment circumstances when making its decision.  We advise anyone in this position to seek legal advice from a lawyer experienced in Family Law.


Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.


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