Both parties are entitled to live in the family home following separation, despite who has legal title and ownership of the property. If there are no safety concerns (no family or domestic violence) the police cannot evict a person from the house either. If there are safety concerns the Police may intervene and remove a person from the home, or apply for an Apprehended Domestic Violence Order (NSW) to protect someone or multiple people including requiring one person to vacate the home.
What if an ex refuses to move out of the former family home?
Pursuant to section 114 of the Family Law Act 1975, the Court has the power to restrain a person from attending or entering the former family home, if the Court believes it is appropriate to make such an order. An injunction of this nature is often referred to as a "Sole Occupancy Order" or "Exclusive Occupancy Order". It is not a simple task to have a former partner removed from the family home. The leading case on this issue is Davis [1982] FamCA 73 [10]. From Davis the Court explained that it is not necessary for an applicant to show that it is impossible to live with the other party and it does not have to be demonstrated that the other person's conduct justifies their exclusion from the former family home. The Court will need to agree that, "it would not be reasonable, sensible or practical to expect them to continue to remain in the home together". The Court will have regard to two primary considerations, (1) whether the property should be occupied by one person over the other, and if so, (2) which person should leave the property?
When determining whether an exclusive occupancy order should be made the Court will consider:
the needs of any children of the relationship;
the means and needs of both of the parties including their income and financial situation;
the existence and availability of alternative accommodation - this is a significant consideration, will the other person be able to house themselves if they are evicted?;
the extent that the home is a significant part of any business that a party owns/runs;
the hardship to either party and the hardship to any children;
the conduct of the parties;
how long the parties have been separated;
who is seeking to retain the property ultimately; and
any domestic violence against one of the parties.
If you would like to discuss and negotiate living arrangements post-separation we can assist with mediation, get in touch today (0449 025 489)!
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