Property Settlement Lawyers

Occupation of the Matrimonial Home After Separation

Going through a separation? You might be wondering who gets to continue using the matrimonial home. Could you be entitled to the sole use and occupation of it?

Example Scenario:

Alfie and Joan are married. They have recently separated but have both continued to live at the former matrimonial home with their two children, Colin who is 16 years of age and Danielle who is 12 years of age. Colin is currently undertaking year 12 exams and is struggling with the conflict between his parents. Colin tells Joan that he can’t keep studying with the ongoing conflict and needs to have a quiet space. Joan asks Alfie to leave the family home to help make the home environment more suitable for the children and to allow Colin and Danielle to finish off the school year. Alfie is not happy about this and says that he won’t leave.

Question: Can Joan remain in the family home and require that Alfie live in alternate accommodation?

Separation

Who gets to use the matrimonial home following separation?

This issue of who will remain living at the former matrimonial home frequently arises when a couple separates. Some people will be able to resolve arrangements amicably and may agree to remain separated whilst living under the same roof.

Real difficulties can arise however where parties are not amicable. One party may not be able to  afford to arrange other accommodation but at the same time, the other party may not be willing to leave the former matrimonial home.   The parties may have children living at home and there may be issues involving domestic violence or abuse.

Section 114 of the Family Law Act 1975 (Cth) allows a party to a relationship (married or de facto) to apply to the Court for an injunction restraining the other party from doing a number of things, for example:

  1. from entering or remaining in the family home;
  2. from entering or remaining in the suburb in which the home is located.

Before such an order may be made, the Court hearing the matter must be satisfied that it would be “proper” to make the order.

Factors that a court will consider in determining what order may be proper to be made include:-

  1. The means and needs of the parties;
  2. The needs of the children;
  3. Any hardship to either party or to the children; and
  4. Where relevant, whether conduct of one party may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

This is not an exhaustive list and there are other factors which the Court in its discretion may consider.

The party seeking the order for exclusive occupation must satisfy the Court on the balance of probabilities that there are sufficient circumstances that justify the Court in making such an order.

Where domestic violence and abuse is occurring, it can be expected that the Court will place significant weight on the negative impact of that abuse upon the children when considering all the relevant factors.

You are welcome to contact us or call us on (07) 3506 3651 if you are needing assistance settling your living arrangements and financial affairs with your former partner following separation.

long term marriage

Long Term Relationship

A recent Australian case has shown that even for very long term relationships, there is no guaranteed right to property settlement. 

Long Term Relationships

Long term relationships

 

It is wrong to assume that a person is entitled to a family law property settlement following the breakdown of their relationship, even where it was a very long term relationship.

The Full Court of the Family Court of Australia in a judgement delivered in December 2016 dismissed  an appeal against the decision of a trial judge that it would not be just and equitable to make any order for property settlement.

The case involved a 27 year relationship. By the time that the parties separated, one of the parties had assets and superannuation worth more than double those of the other party.

The trial judge had found that the parties conducted their affairs in such a way that neither party would or could have acquired an interest in the property owned by the other. Various reasons for that were given by the trial judge including that:

  • There was no intermingling of the party’s respective finances;
  • The parties did not have a joint bank account;
  • Each party had purchased property in their own name;
  • Each party was responsible for their own debts;
  • Each party could use their earnings as they chose without explaining or accounting to the other party;
  • There was a complete lack of joint financial decision making;
  • The parties did not share information with each other as to their individual financial decision making or their respective financial situations;
  • Neither party had taken steps to ensure that the other would receive property or superannuation in the event of death.

The Full Court said that the trial judge had made no findings that would point to any express and implicit assumptions that a party would ultimately share in the other’s property or that one would benefit on the death of the other.

For more information on property settlements, de facto relationships or same sex relationship rights under family law, click here. Or, to receive tailored legal advice with our experienced family lawyers, give us a call today.