When a marriage or de facto relationship ends, some couples choose to live separately under the same roof while they sort out their long-term living arrangements. This can be a convenient and affordable option if both parties are on relatively good terms. However, it’s not always a viable solution even in these times of increased cost of living, it remains extremely common for one person to stay in the home, while the other moves out and finds a new place to live.
If mutually agreed living arrangements cannot be agreed by the parties, they are able to seek, through the Family Court, exclusive use and occupation orders, which refers to orders that grant one party the right to live in a property. This right is usually temporary, and typically only in place until a final property settlement is reached, or an agreement is made.
In some cases, one party may apply to the Family Court for this order, requiring the other party to vacate the property within a short timeframe. This is often necessary as both parties are often registered owners of the property and are both legally entitled to live in the property post separation.
There may be circumstances where the house is not jointly owned but it is appropriate, at least in the short-term, for the non-owner spouse to have a sole occupancy order.
How to Obtain an Order for Exclusive Use and Occupation
Exclusive use and occupation is a discretionary matter in Australian family law, meaning the Court has flexibility when making decisions about who gets to reside in a particular property. However, there are several factors the Court must evaluate, when determining whether exclusive occupation should be granted.
The factors include, but are not limited to the following:
- Financial Means and Needs
The financial situations of both parties, including income, resources, and access to funds, are important. The Court will consider whether one party can afford to live elsewhere, taking into account their ability to secure alternative accommodation.
The Court will look at any viable options for either of the parties to live elsewhere.
- The Needs of Any Children
The best interests of any children involved are a priority and accordingly, will result in the Court assessing how the children’s living arrangements might be affected, particularly if one party remains in the family home.
For example, in the case of Sieling, the Court looked at whether the children’s living situation would be more stable if they stayed with the primary carer in the family home, rather than being moved to rental accommodation.
When school-aged children are involved, the proximity of the primary carer of the children to their school and other amenities will be an important factor in a Court’s decision.
- The Conduct of the Parties
The behaviour of either party can influence the decision to grant an order for exclusive use and occupation. If there is a history of domestic violence or abuse, or if one party is engaging in disruptive behaviour, like intimidation, the Court may decide that the other party should be removed from the home.
The Court will also consider whether one party is maintaining the property and whether the other party can continue doing so at the same standard.
The Court will also look at the interim financial arrangements for paying the mortgage and the costs of the other party’s accommodation in deciding if an exclusive use and occupation order is viable.
- Balance of Convenience and Hardship
The Court will weigh who would face more hardship or inconvenience if forced to leave the property. In the case of Fedele, the Court ruled that the wife, who was the primary carer for their children and unable to afford alternate accommodation, should have exclusive use of the home, even though the husband had been living there and running his business from the house after separation.
Conclusion
When parties can’t agree on who should stay in the family home, the Family Court has the authority to make an order if it sees fit. However, the circumstances of each case are unique, and all relevant factors must be considered before a decision is made.
If you would like some further advice on your current post-separation living arrangements, or if you know someone who we could assist, please contact the family law team at Lynn & Brown for an initial consultation to discuss these and other post-separation arrangements.
About the Authors: This article is co-authored by Avinash and Jacqui. Avinash graduated from Murdoch University with a Master of Laws and a Bachelor of Business, majoring in finance. Jacqui is a Perth lawyer and director at Lynn & Brown Lawyers. Jacqui has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning. Jacqui is also a Nationally Accredited Mediator and a Notary Public.
