People often think separation in legal terms is what it is in everyday language: a physical separation, where one or both parties will move out of what used to be their family home.

However, sometimes the family home can end up being a battleground, when the spouses wish to separate, but cannot agree on who should move out. Naturally, separation and divorce are difficult and stressful in themselves – fighting over who gets to stay and who needs to leave is adding to the problems.

As separation does not necessarily mean physical separation, it is possible that the former spouses stay in the same home for a while, or even with no plans of moving out. The majority of separated couples, however, would rather opt for living independently, as creating physical distance makes the separation process easier.

If your spouse refuses to move out of the house, here is what you it can be done about it.

Who Gets the Family Home When You Separate?

In the event of a family law separation, both parties are legally entitled to live in the family home.

This means that it does not matter who officially owns the house. There is no presumption that one of the parties has to leave. Not one party is required to leave because the other wishes it, and no one can be forced to leave. Legally, you cannot kick each other out of your family home.

The removal of one occupant can be enforced by the police in one of the following events:

  • There are safety concerns, or
  • Court orders have been breached, or
  • A crime is taking place in the family home.

Otherwise, the police cannot help in the matter.

Generally, parties will reach some form of an agreement where one spouse will leave the property to avoid a potentially stressful situation.

However, in circumstances of domestic violence, this situation is treated differently. If you or your children are at risk of being harmed, contact emergency services or the police as soon as possible.

Occupancy Order – What Is It and How Can It Be Ordered?

Occupancy orders are sought under section 114 of the Family Law Act 1975.

This section gives the court the power to make injunctions – court orders that prevent someone from performing, or that require someone to perform, a certain act.

In relation to separation and staying in the family home, the injunction covered by section 114 of the Family Law Act 1975 is an injunction relating to the use or occupancy of the matrimonial home. A person may seek an occupancy order in the Family Court, or in the Federal Circuit Court.

Asking for an occupancy order is considered a serious matter by the court. This is most often ordered when a person asking is in danger.

If occupancy order is granted, the ex-spouse would be in breach of the order if they stayed in the home. That means they they are legally required to leave the matrimonial home and live somewhere else.

Another case where this order can also be sought is the case of domestic violence. This is then done under the Domestic and Family Violence Protection Act 2012 in the Magistrates Court.

The decision on whether the occupancy order will be issued is made by the court based on two points:

  • Should the residence by occupied by one party, and
  • If so, which party should leave the residence.

The court must decide that it is “proper” to make an exclusive occupation order. What they mean by that is determining whether or not it would be reasonable, sensible or practical to expect the ex-spouses to remain living in the home in question. The court must also decide whether the occupancy order is necessary, or whether it is being made for convenience.

When determining whether the exclusive occupation order is “proper”, these are the point the court will have to assess:

  • The needs of any children of the relationship
  • The means and needs of both ex-spouses, including their income and financial situation, whether they have any alternative accommodation, and whether they own or run a business that the home is a part of;
  • The hardship to either party, as well as the hardship to any children,
  • The conduct of the parties,
  • History of any physical assault or violence against one of the parties.

When it is determined that the needs of the applicant for an occupancy order are greater than those of the other party, the order will be granted. Once this happens, the applicant is able to stay in the house without their former partner until the property has been divided in the finalisation of a divorce.

Of course, it is possible that the former spouses will decide who is to leave without the intervention of the court. It is worth noting that the person who leaves will have unaffected entitlement to a share of the property during divorce proceedings.

What to Do in a Case of Domestic Abuse

If you fear abuse or violence, or if your spouse has already been abusive, it is important to seek advice immediately. Contact your Withstand Lawyers representative as soon as possible.

If your partner is being abusive or is making threats against you, it is highly likely that the court will grant you an exclusive occupation order. This is even more prominent if any children are affected.

It is important you know that help is available to you if you want to leave an abusive relationship. Domestic abuse is dealt with in the Magistrates Court, as it is a crime. Magistrates Court will also be responsible for occupancy orders that involve violent or threating situations. All other aspects of separation and divorce will be dealt with in the Family Court and the Federal Circuit Court.

An Apprehended Violence Order (AVO) can be made against a spouse or former spouse to protect you from violence, harassment and intimidation. Different conditions can be added to this order in order to restrict your former partner’s behaviour. For example, they can be prohibited from coming near you, or going into places where you live or work.

What Happens with the Children?

Separations and divorces are not usually the happiest of times for neither of the parties involved. These processes carry a lot of stress and sometimes even open hostility between the parties. If left to simmer, this can build up further and further, especially if they cannot agree on who should leave and who gets to stay in the matrimonial home.

If there are children involved, they can be affected by this conflict, both if it is being explicit, or conveyed through silence and coldness between the parties. Even if the children are young and unable to understand the situation and what is going on, they can and will feel the emotional stress.

In cases where neither party wants to leave the house, this is especially complicated if there are children: naturally, neither parent wants to stop spending as much time with their children, and that is bound to happen should anyone move out.

If the parties cannot agree on child custody, the matter is most likely to go to court. If you are determined to stay in the family home with the child or children, it may influence future custody hearings. Should one of the ex-spouses eventually move out, they may be required to pay child support if they end up being the party who spends less time with the children.

Spousal Maintenance

Issues that couples fight about the most include children, property, and finance.

In the events of separation or divorce, financial issues can become a major problem, no matter what the circumstances had been prior to these events. After deciding who is to move out of the family home, one party may be liable to pay spousal maintenance.

The party who leaves has to find a new place to live; this can create a lot of financial strain, and if appropriate housing is more expensive than the party can afford, the other party may be required to pay them financial support.

Since the party staying in the family home is most likely to become the primary carer of any children involved, this may reduce their income earning capacity. In such cases, their former partners may be ordered to pay spousal maintenance.

Spousal maintenance is different from child support. Child support is paid for the benefit of the children exclusively.

Both former partners have an equal legal responsibility to support and maintain each as far as they are able, based on their own income. Their own income and financial resources will determine the amount of financial support.

If finances are the key problem in who stays in the matrimonial home and who has to leave, a final result may involve one party paying spousal maintenance.

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