Should I stay in the family home or should I go?

After a marriage or relationship breaks down, the issue of whether to stay in the family home or leave is a hotly contested issue. This is especially emotive when children are involved. Finances are tight and may not stretch comfortably, or even at all, across two households for the payment of rent and/or a mortgage. After all, few adults want to move back in with parents. So, what does the law say?

Section 114 (1)(f) of the Family Law Act 1975 (Cth) (‘the Act’) provides the family courts with the power to make injunctive orders regarding the use or occupancy of the family home. The Act is silent however on the factors to be considered in making such an order.

The legal principles regarding exclusive or sole occupation derive from the 1978 Full Court case In the Marriage of Gillie which are:

• The needs and financial means of the parties;
• The needs of the children (if any);
• The hardship to either party or to the children; and
• Where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the other party.

The above factors are guidelines only and are not a set of mandatory requirements. The onus of proving entitlement to sole occupation falls to the person making the Application and each case is heard according to its own unique facts. Overall, the Court will make whatever order it considers to be fair and just in the circumstances of the case.

An Application for sole or exclusive occupation of property is what is known as an “interim” or “interlocutory” application; meaning before a final hearing deciding essentially who gets what.

The Court does not lightly, remove a co-owner from their own property without good cause. The onus of proving entitlement to sole occupation of property, falls to the person making the Application to Court.

The conduct of the party being asked to leave the home may be significant in a successful application for sole occupation, especially when there are children who may be negatively impacted by ongoing conflict between the parents if they both remain in the home especially where there is family violence. The conduct must be serious however, not merely annoying or inconvenient.

There are also circumstances where one party has no choice but to leave the matrimonial home where there has been domestic violence issues and the Police have become involved. Under certain circumstances the Local Court can issue an Apprehended Domestic Violence Order (ADVO). Conditions can be imposed in the ADVO including a condition to exclude the offending party from living in the matrimonial home for a period of time.

In the above circumstances, it is advisable for each party to seek legal advice as to their legal entitlements under the Family Law Act 1975 and the best way to proceed.

Solari and Stock Lawyers have extensive experience in Applications for Exclusive Occupation and have had success both in gaining sole occupancy of the home and in resisting such application for our clients.

If this article has created concerns for you, or if you are considering separating and would like to know the best way to move forward please contact Solari and Stock Sutherland Shire on 8525 2700 or click here to request an appointment with one of our experienced Family Law Team.

Article by Nikita Ward
Photo by Erda Estremera on Unsplash