Blog post by Kate O’Leary.
“My partner and I have separated but he/she won’t move out of the house! What can I do?”
Both spouses are entitled to live in the family home, regardless of whose name is on the title to the house. In the event of a dispute, you cannot force your spouse to leave unless a court orders it.
An occupancy order is an injunction providing for sole occupancy of the family home. Such an injunction is sought under s114 of the Family Law Act 1975 (Cth). Where there are allegations of violence involved there are different avenues that can be followed (please contact the Police if you feel that you or your children are in danger).
The court regards the exclusion of a party to the family home as a very serious matter. In determining an application for an occupancy order the court must decide:
- should the property be occupied by only one party; and
- if so, which party should leave the property.
The onus of establishing a case for occupancy rests on the spouse seeking the injunction.
The test is that it must be proper to make an order for occupation. In determining what is proper the court needs to determine whether or not it is reasonable, sensible or practical to expect the parties to remain in the home together. With this in mind, the court will have regard to the following:
- the needs of any children;
- the means and needs of the parties; including financial resources, presence of alternative accommodation, the degree to which the home is an essential part of any business owned or run by a spouse;
- the hardship to either party or to the children of the marriage;
- the conduct of the parties; and
- any physical violence against one of the parties.
The court will be reluctant to order a person to leave the home unless the needs of the other spouse clearly outweigh his or her right to occupy the property.
For further information regarding your rights post-separation please contact Culshaw Miller Divorce & Family Lawyers to make an appointment.