When a marriage or de facto relationship breaks down, some spouses find that it is practical, economic and easier on the children, to both continue to occupy the family home - albeit as a separated couple - until they have reached a final agreement, or obtained final orders, on parenting and property matters.
However, this is not always an option, or viable in circumstances where the breakdown of the relationship is particularly hostile, or there are issues of violence. It is also not ideal to stay living under the same roof, if the children are being exposed to continued argument and debate.
What if you cannot continue to occupy the family home together, and you want sole occupation of the family home pending a final resolution of all matters?
Ideally, the best approach at first instance, is to try and reach a practical agreement with your spouse by exploring sensible options, for example, can your spouse move in with their parents? However, if an agreement cannot be reached, or you are not in a position to negotiate because there are issues of family violence, you ought to seek advice about the option of applying to the Court for an exclusive occupation order to reside in the matrimonial home exclusively under the Family Law Act 1975 (the Act).
The Court has a wide discretion in deciding such cases. Whilst each case is determined on its own merits, facts and circumstances, in broad terms, the Court will usually take the following matters into consideration:
- whether the application is reasonable or unnecessary;
- the interests of any children;
- the relationship between the parties;
- the financial position of each party;
- whether it is practical and financially possible for either party to obtain alternate accommodation;
- any issues of family violence;
- alternate options available to the parties, for example, temporarily moving in with parents or moving into an investment property;
- convenience or hardship to either party of moving out; and,
- any other matter that the Court considers relevant.
The Court is not restricted by the above list and will make whatever order it considers to be appropriate in the circumstances of the case.
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.