March 18, 2021

Now that we’re separated, who stays in the house?

By Caitlin Elliott, Senior Associate

Separated couples can usually come to an agreement about who stays in the family home and who moves out. Those who can’t come to an agreement can ask the family law courts (the Federal Circuit Court of Australia or the Family Court of Australia) to determine the dispute.

The court can make an order giving one person sole use and occupation of the family home. It can also grant an injunction restraining the other person from entering or remaining in the family home. The court makes these types of orders cautiously and rarely, given the seriousness of ejecting someone from their home.  

When deciding if an order for sole use and occupation should be made, the court must be satisfied that it is not reasonable, sensible or practical for the couple to remain living in the home together. It is not necessary for one party to show that it is impossible or intolerable for them to remain living together, or that one party has engaged in conduct justifying exclusion from the home.

The following are some of the factors considered by the court when deciding whether to make an order for sole use and occupation:

  • The means and needs of the parties (for example, income and assets).
  • The needs of any children (for example, whether it is in the children’s interests to remain in the home with one party over the other party, disruption to the children if they were to live with the party expelled from the home, effect on the children’s education).
  • Hardship to either party or children (for example, whether one party can be adequately housed elsewhere).
  • Where relevant, conduct justifying one party being expelled from the home (for example, family violence).

Where there are children, conflict between the parents, and the impact of that conflict on the parents and the children, is often a key factor in the court’s decision whether to make an order for sole use and occupation.

If you are separated (or considering separating) and would like advice about these issues, please contact us on (03) 8672 5222 to arrange an appointment with one of our family lawyers.

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