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The Matrimonial Home – Who Gets to Stay After Separation?

29/06/2020

The issue of who should leave and who should stay in the matrimonial home when the parties separate is a major and early decision.  The long term consequences of the decision can influence who ultimately retains the matrimonial home on a final basis and changes the standard of living for the other.  Some people can resolve the issue of who stays and who goes between themselves.  Some people remain under one roof but separate within the household. 

Applications for Exclusive Occupancy in the Family Court of Australia and the Federal Circuit Court

In some cases there is no agreement and the Court may be asked to decide.  The Family Court of Australia (and the Federal Circuit Court of Australia) have power to grant an injunction (an Order) restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides.  The Court can order exclusive occupation of the home by one party.  This also applies to parties in de facto relationships.

How Does the Court Decide Who Gets to Stay Who Has to Go?

The Court applies a test of what is just or convenient in de facto matters and what it considers proper in cases of the marriage.  The Court decides this type of case in accordance with the principles in Davis and Davis.

In Davis and Davis (1976) the Full Court of the Family Court referred to matters which should be considered by any Court when deciding whether to give a spouse exclusive use or occupation of the matrimonial home: 

“The criteria for the exercise of the power under sec 114(1) are simply that the Court may make such an order as it thinks proper.  The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.”

The Court will look at:

  • The means and needs of the parties.
  • The needs of the children. 
  • What are the interests of any children of the parties and what would be in their paramount interest? 
  • Hardship to either party or to the children. 
  • Whether the conduct of one party may justify the other party asking for sole occupancy. 
  • Is the party engaging in any improper behaviour such as intimidation or manipulation to prevent their spouse from pursuing his or her rights should they continue to reside in one home?
  • Whether one of the parties can be adequately housed elsewhere and whether any funds available for either parties’ resources to provide that housing?
  • For whom is it less convenient to have live away from the matrimonial home?
  • Is possible in justice of forcing a party to establish for her/himself another home, or otherwise accept inferior, accommodation without cause.

Application to the Court for Orders for Exclusive Occupancy must be supported by an Affidavit which provides evidence as to the matters that the Court will look at in the exercise of its discretion.   If you are in the process of negotiating property settlement with your spouse or partner and have any queries or concerns regarding exclusive occupancy of the family home or you wish to retain the family home, please do not hesitate to contact Richard Watson Senior Family Lawyer or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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