Can I force my ex-partner to move out of the house?

Ultimately, it will depend on the circumstances of your case.  If the home is in joint names, you both have a right to occupy the property. 

If, however, one person has moved out, then the other person who continued to live there, should be able to have the benefit of privacy and the peaceful occupation of the property.

If the property is not in joint names, but it was still a property that you have a legal or equitable interest in, then you may still have rights to continue to occupy the property arising from your relationship.

A party to a family law dispute can make an application to the Court for an order that restrains the other party from living at the property.

The Court does not like to exclude people from living in their own home, so the party seeking the order must prove that there are reasons for excluding the other party, beyond mere inconvenience.

When a Judicial Officer makes that decision, they have to consider that it is necessary to do so on the circumstances of the case.  They need to consider:

• The circumstances of the case and the reasons for the proposed restraint/eviction;
• The financial circumstances of the parties; and
• The accommodation needs of the parties and/ or any children involved

This would raise questions about:

• Can the parties continue to live at the home together?
• Are there children of the relationship and what are the arrangements for the children? 
• Does either party have the ability to move out, and find alternative accommodation?  Is there somewhere else that they can go?  Do they have the financial capacity to pay for rent for alternative accommodation?
• A consideration of the financial position of the parties, their income and their expenses?  Is the person who wants to keep living at the property in a financial position to pay the mortgage and outgoings?
• A consideration of what level of financial support, each of the parties, should be paying towards the household costs and the other party?
• Is there any family violence or an AVO?

Other practical considerations are:

• Who will be retaining the property on a long-term basis? for example there is little point in excluding a party from living at a property if the other party is not in a financial position to keep the home on a long-term basis; 

• Whether the parties should list the property for sale, if neither of the parties are in a financial position to retain the property on a long-term basis.

If there has been Family Violence and/or there is a current Apprehended Violence Order, a party can make an application to the Local Court, seeking a term of the Apprehended Violence Order that the Defendant be excluded from living at the home or occupying the home owned by them.  The Crimes (Domestic and Personal Violence) Act 2007, says that when dealing with these applications, the Magistrate has to take into consideration:

• the effects and consequences on the safety and protection of the protected person, and any children living or ordinarily living at the residence if an order prohibiting, or restricting access to the residence is not made; and
• any hardship that may be caused by making or not making the order, particularly to the protected person and any children; and
• the accommodation needs of all relevant parties, in particular the protected person and any children; and
• any other relevant matter.

Ultimately, there are a number of factors that will influence a party’s decision about their living arrangements, and it is a decision that a party should consider carefully before rushing into.

We hope that this article assists you in making decisions about your current or future living arrangements whilst in the midst of separation. Should you wish to discuss your current situation with one of our Family Law team please contact us on 8525 2700 or click here to request an appointment.

For more information on this topic please refer to our recent article by Nicole Quirk, Should I stay or should I go?

Article written by Nicole Quirk
Photo by Wise Move SA on Unsplash