Ever wondered who gets to stay in the house after a separation?

At least in the short term, it is ideal to remain in the family home if you can. CGW family lawyer Hannah Flanderka explains.


Hi. My name's Hannah. I'm a lawyer in the family law team at Cooper Grace Ward.

When separation occurs, one difficult conversation or dilemma can often be who should move out. From a family law perspective, both parties are actually entitled to remain in the home regardless of who owns the house. Subject, of course, to any domestic violence or family violence issues.

As a starting point is ideal to stay in the house, if you can, for practical reasons, including avoiding needing to move your items and other factors similar. If you don't stay in the house some consequences can include one, if you do leave and then try to come back without the consent of the other party, there is a risk that they may make an application for a domestic violence order against you, which can then result in a protection order being made against you. Secondly, if you are joint owners of the home and you move out, you can then be faced with the difficult situation of needing to be liable for the mortgage of the former home as well as any rent that you're incurring at the new premises. While you might reach an agreement with your former spouse about splitting the bills, there's always the risk that they could elect to stop paying the mortgage and then you'll be faced with that double liability.

One solution that some people consider, particularly when you have little ones, is what's called a nesting arrangement. This can be ideal in the short term. However, we recommend against it because of the difficulty you can have in the longer term. Essentially, what it involves is that two parents may alternate staying in the home, say, on a week on week off basis so that the children can maintain in the same place and have the what is considered naturally to be stability. The difficulty with this is that it really is a temporary solution as conflict may arise where one parent can leave the house a little bit too messy on one occasion, or they may even bring a new partner home. It's also very disruptive to have to move your belongings back and forth, particularly in short intervals. And that can actually counter-intuitively affect the kids as well. Further, from a family law perspective, the date of separation can become blurred if you're both living under the same roof. And this can have implications for your application for divorce as well as the property settlement negotiations that you may have.

So, you may be wondering, how do I get my spouse to move out then? So, the first step, if it's safe to do so, would be to try and talk it out with your spouse. So, if you can reach an agreement about them moving out, you should also try and talk about how you're going to manage any joint bills as well as managing two households generally and making arrangements for the kids. If that doesn't work, then you can consider going to mediation or consulting with the family dispute resolution practitioner to see if they can help you facilitate an agreement. If this fails, then we recommend talking to a family lawyer so that they can assist you in their how to move forward. If conflict arises or increases and you do fear for your safety, then you may want to consider seeking an application for a domestic violence order and that could, for example, seek orders about what's called an ousting order, which essentially will require the spouse to move out of the home and can also prohibit them from re-entering.

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Cooper Grace Ward is a leading Australian law firm based in Brisbane.

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.