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?
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?
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:
- from entering or remaining in the family home;
- 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:-
- The means and needs of the parties;
- The needs of the children;
- Any hardship to either party or to the children; and
- 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.