Who gets to stay in the house during separation?

Both parties can stay in the house during a separation. Leaving the house during separation doesn’t mean forfeiture of the house for that party in a final settlement.

Separation is an emotionally and financially difficult time. It is important to know your rights so that you, your ex-partner, and any children can all achieve the best possible outcome and move forward with your lives when separation or relationship breakdown occurs.

An arrangement will need to be formulated for the period between separation and the final settlement of property division or property orders. Either one party will retain the matrimonial property, or it will be sold.

What to consider

There are three key ideas to consider when deciding who will stay in the house. What will be: 

• Most beneficial for the future of each party? 
• In the best interests of any children? 
• The most cost effective and least inflammatory outcome? 

Both parties are entitled to remain in the house during this period of negotiation. Even without legal ownership – this may be the case where one party is not a registered proprietor – it is possible to establish an equitable interest in the property.

This means that even if your name is not on the paperwork, you may still be able to claim an interest in the property. This will not automatically give your partner a greater right to remain in the house. Particularly in longer relationships, contributions are assessed as equal.

So a homemaker or caretaker will not be considered to have less entitlement than the person with greater financial contributions.

Additionally, if one party chooses to leave the matrimonial house during separation, this will not exclude their entitlement in the determination of a final property settlement. In other words, it will not create an interest in favour of the party remaining in the house. 

But who has to move out?

There are a number of different pathways that may be utilised during separation, to determine who will remain in the house.

Some couples choose to remain living separately under one roof. This can provide financial security and stability to children while the parties negotiate the division of property.

This is a short-term option, and not suitable for all situations. Especially given the complex emotions that surround this scenario.  

It may be the case that both parties wish to continue living in the matrimonial property without the presence of the other party. Sometimes this can be resolved through some sort of agreement reached by the parties.

However, given the emotional strain involved, it may be necessary to engage a dispute resolution practitioner or mediator to facilitate negotiations.

Negotiating who will remain in the house

Such negotiations will also consider arrangements for mortgage or rent repayments. Engaging in this style of negotiation can be useful, as the facilitator will document your agreements, which assists in keeping each party accountable.

These negotiations can be useful if litigation is later pursued.

In many situations, parties will maintain the arrangement for the payment of rent or mortgage while seeking final property settlement, to minimise the stress on each party.

If one party contributes substantially to these payments, adjustments can be made in the final settlement, or spousal maintenance payments can be made. 

In the case where another party disregards the agreement made and attempts to enter the matrimonial house without permission, it may be appropriate to seek a sole occupation order.

This can be sought by both married and de-facto couples. It is important to note that such orders are not made lightly – a general sense of discomfort or lack of amicable relations will not be enough to satisfy a court being asked to make such an order.

Several factors will contribute to a determination of whether a sole occupation order can be granted, including: 

• The needs of each party and any children
• The financial standing of each party 
• Whether or not the other party can reasonably find other accommodation 
• Hardship to either party or children 
• The occurrence or apprehension of violence 
• The best interests of any children 

The person who is seeking the order will be required to make a case establishing which party sole occupancy should be granted to. If a court considers it appropriate, an injunction will be issued to prevent the other party from using the property.

Sole occupancy orders should generally be considered as a ‘last-resort’ method of solving this issue.  

Obtaining an AVO

If you are at risk of, or have experienced violence, seek legal advice and support from a domestic violence hotline, immediately. You should seek legal advice if you are being forced out of the matrimonial home.

Occupancy orders can be granted when there is evidence of domestic violence. It may also be appropriate to seek an Apprehended Violence Order (AVO). 

If you are seeking a child-focussed solution, consider setting up a “bird-nesting” arrangement. This is where the children remain living in the matrimonial property, and each party alternates staying with them.

This can provide a greater sense of stability for children and streamline organisation for parents.

In court proceedings, the court will consider the best interests of any children. So it is advisable to take their interests into account from the outset.

Relocating Children

In the event that it is necessary for the children to relocate, minimising disruption to current routines is optimal.

Staying local, to remain near school, friends, and other extra-curricular activities is generally desirable.

It is advisable to take all important documentation, such as passports, birth certificates and title documents with you. 

Final Point

It is important to maintain a future-focussed approach throughout this difficult process. This will help you and your ex-partner to reach a more optimal outcome. For further assistance on this or any family law issue, you can schedule a call with one of our family lawyers here.