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
Whether one partner is the sole owner of the family home;
The means and needs of the parties;
The needs of any children concerned;
If relevant, any conduct which justifies one party being
expelled from the family home; and
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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