!

NOTICE ALERT IN LIGHT OF COVID-19

WHAT WE PROPOSE AND HOW WE CAN ASSIST

At Watson & Watson our clients come first. Please be assured of our continued dedicated services to all current and new clients.

As we have done in the past, we will continue to offer alternative conferencing methods ie video conferencing, skype or telephone conferences. Reviewing of all documentation provided to us prior to any initial conference will be all inclusive of our set fee. Do not hesitate to contact Shereen Da Gloria on (02) 9221 6011 should you have any concerns.

Property Disputes - When can I change the locks?

23/11/2020

In some family law matters one party will leave the matrimonial home and set up residence somewhere else voluntarily.  The party remaining has the benefit of remaining in the home.  In other cases there may be a refusal or unwillingness to relocate.  There may be financial difficulties in funding relocation. 

The question most often asked in a situation where two people have equal rights to reside in a property (because that property is owned jointly) is “when can I change the locks”.

In the event that the home is registered in both names or occupied by both parties, both parties have a right to reside in the home and as Owners, each have the right to changes the locks.  If the changing of the locks results in one party moving away and staying away, then a practical outcome is achieved. In other words if the party locked out accepts that outcome, then it is a case of problem solved. 

But there can be complications:

  • The other party may try and change the locks again. 
  • One of the parties may stop paying the mortgage or otherwise maintain the property. 
  • One party may start proceedings in Court to get the Court to decide who stays and who goes.

If a dispute of this nature arose, then the Court may have to be involved and there may be an Application for an Order from the Court for exclusive occupancy of the home in favour of one party or the other. 

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

In cases where there is no agreement, 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 Family Court/ Federal Circuit 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 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 are available from either parties’ resources to provide that housing?
  • For whom is it less convenient to have live away from the matrimonial home?
  • If possible injustice of forcing a party to establish for her/himself another home, or otherwise accepted 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 process of financial/property settlement and are unsure of your rights in relation to occupation of the family home or have any concerns regarding your rights and entitlement in relation to property settlement, please contact Richard Watson Senior Family Solicitor or Shereen Da Gloria his Personal Assistant to discuss your matter and seek the 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

Divorce & Separation FAQs

Related Cases & Articles

Personal Experienced Professional Affordable

Phone 02 9221 6011

Send us your enquiry
Book an appointment Request a quote Send your question
Online enquiry form

Watson & Watson are always available to provide expert legal advice and answer any questions you may have.

All enquiries received will be responded to within 24 hours.

Call: 02 9221 6011