17 Dec 2014

The question seems simple, the answer is more complex. Even where one partner is the registered owner of the family home, that partner is not necessarily entitled to remain in the family home to the exclusion of the other.

 

Under s 114(1)(b) and 114(2A) of the Family Law Act 1975 (Cth), the Family Court has a power to restrain by injunction one partner from occupying the family home for a period of time. The effect of an exercise of such a power is that the non restrained party enjoys what is called a right of “sole occupancy” of the family home. In deciding to make an order for sole occupancy of the family home in favour of one of the parties (“Sole Occupancy Order”), the Family Court will look at a number of factors, including but not limited to:

 

  1. Whether one partner is the sole owner of the family home;
  2. The means and needs of the parties;
  3. The needs of any children concerned;
  4. If relevant, any conduct which justifies one party being expelled from the family home; and
  5. The practical realities of family life.

 

As with most Family Law matters, the power to make a Sole Occupancy Order is a discretionary one and is to be made with reference to the facts of each particular case.  It is helpful to consider a case where a Sole Occupancy order was granted so as to understand the range of factors that may need to be present in order for a court to grant the order.  In Saveree & Elenton, where the order was granted to the wife, the following facts were present:

  • There were allegations of non-physical family violence and abuse. The husband was very verbally aggressive, abusive and had damaged furniture over a 5 year period escalating. The husband admitted to most of this.
  • There was strong evidence of the negative effect of the conflict on the children, who were sitting exams. Reports were made to school counsellors who provided evidence of their significant concerns and negative impact on the children;
  • The wife was unable to find alternative accommodations, she operated a business from home seeing 8 clients per week, and she worked at schools in the area;
  • The husband’s financial circumstances were such that he would be able to find alternate accommodation – he may endure some hardship but not significant;

There was no realistic prospect of the children living with the husband at the matrimonial home. The difficulty with the existing laws in respect of sole occupancy is that a partner cannot “enforce” any “right” of sole occupation until such time as the Family Court makes a Sole Occupancy Order. For partners who do not have the means, time or inclination to apply to the Court for a Sole Occupancy Order, the range of options are generally limited to (1) both parties living separated under one roof (2) one partner moving out with that partner bearing the cost of any rent.

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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