After separation, it often becomes difficult and strained for a
couple to live under one roof. A dilemma may arise when it is time
for one party to leave the home. The decision as to which party
remains in the family home is not a legal issue but a practical
one. Whether a party remains in, or leaves, the family home does
not affect their entitlements in an eventual property
The first consideration must be what arrangements will be in the
best interests of the children (if any). If it is clear that the
children will live primarily with one party, then to avoid
disruption to the children's routine, it is best if the
children and their main carer remain in the family home.
If there are no children, then the parties should consider who
is most likely to retain the property in an overall settlement, and
who can best maintain that property, both financially and
The party leaving the family home can take their share of the
household items. They should also take all of their financial
records, such as tax returns, superannuation statements and bank
records. These documents will be useful at a later stage when
negotiating a property settlement. Remember that financial records
may be difficult to obtain once one party leaves the family
"Exclusive Occupation" of the Family Home
Once a party leaves the family home, then that party should not
re-enter the home uninvited. In other words, the party remaining in
the family home should have what is called "exclusive
occupation" of the home.
Again, this is not a legal rule – however it is a good
practice in the interests of preventing unnecessary disputes. For
example, it reduces the possibility of the party who has left the
home being accused of removing items from the home after they have
moved out. It also means that the party remaining in the home is
less likely to attempt to change the locks.
The party remaining in the family home (if they have an income)
is likely to be responsible for the following types of expenses,
without contribution from the other party:
rent (if applicable);
groceries and household supplies; or
general household maintenance.
If the party leaving the family home is one of the registered
proprietors of the property then they will generally have to meet
their commitments as a property owner, namely contributing to
outgoings such as shire rates and land tax.
If a party's name is on the mortgage, then they are likely
to continue to be responsible for contributing to the mortgage
instalments, regardless of whether they are living at the property
Overall Property Settlement
For the purposes of an overall property settlement, it is
irrelevant whether a party has remained in the family home or moved
Ultimately, the overall property settlement must be fair and
equitable. Possession of particular items of property at a point in
time will not stop the Court from adjusting property interests
differently and allocating that item to the other party.
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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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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