Can I kick my husband out of the house?
By Clara Suki 
Updated: 19 May 2023 · Read time: 4 minutes
The law allows for individuals who are undergoing a divorce or breakdown in their de facto relationship to apply to Court for the right to force their spouse to move away from the family house.
Obtaining such a court order depends on a factors such as the ownership of the house and the circumstances of the relationship.
What happens if the family home is registered under the name of both parties?
If the family home is registered under the name of both parties, one party will not be allowed to bar the other from entering. This is because both individuals have equal proprietary rights to the house.
This means that one party will need a court order to legally remove their spouse from their home.
Obtaining an occupancy order
One way an individual may choose to remove their partner from their home is by seeking an occupancy order. Pursuant to section 114 of the Family Law Act 1975, a Court can implement an injunction relating to ‘the use or occupancy of the matrimonial home’. This means that a court can determine who should reside in the home and who should not. This is regarded as a serious matter by the courts and hence a court will not issue an injunction order unless there is a serious reason why someone should be removed.
In determining whether an occupancy order should be issued, a court will consider various factors including:
- The safety and wellbeing of any children involved in the relationship and how they will be affected
- The needs and resources of both parties
- Whether there is a risk of violence to people or property
- The character and conduct of both parties
- Whether it is possible for both parties to live in the home with minimal contact.
Generally, couples undergoing separation are able to decide for themselves who will stay in the family home and who will move out. If an agreement cannot be reached about this matter, the Family Court may be able to make an order for one party to leave, particularly if the other party’s health is at risk. If one party finds themself in this position, it is strongly recommended that they seek legal advice to ensure that their rights are properly protected.
Changing the locks on a family home
As mentioned before, if both parties are owners of the property, both parties will be entitled to stay in the home. This means that changing the locks on the family home and locking an individual out is not a good idea.
As the other party still has legal title to the property, they can choose to call a locksmith and gain access to the house. This also means that they also would be legally allowed to change the locks on the house and bar the other party from entering. Hence, the best method of removing a party from a family home is to seek a court order.
Obtaining a restraining order
If an individual finds themself in a serious position where they are in a situation of imminent violence, they may choose to apply for a restraining order. A restraining order, otherwise known as an intervention order, is a court order that aims to protect a person from another. Protected people can include children and any other person that is reasonably at risk from the defendant.
A protected person can choose to have certain conditions implemented with their restraining order. An example of a condition can be restricting a defendant’s access to the matrimonial home and ensuring that they are unable to visit other locations that the other party or their children frequent. Other examples of conditions that can be attached to a restraining order include that the defendant individual cannot:
- Visit the matrimonial home
- Visit the protected person’s place of work
- Visit any place that the protected children may visit frequently, such as school grounds
- Threaten to harm the protected person
- Stalk the protected person
- Contact the protected person, whether in person or via social media.
If the restraining order is not followed the consequences can include fines and jail time.
If you need any assistance regarding a family dispute or obtaining a court order, please feel free to reach us via the contact form.
