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Exclusive Occupancy of Matrimonial Home granted to wife pending final hearing – What are the relevant considerations?


Watson & Watson act for Sally.  Robert and Sally had been married for 10 years and have two children aged 6 and 9.  They both live in the house owned by them in joint names.  The house is a large house and there is a mortgage to the bank.

Robert and Sally have decided to separate but neither of them are prepared to leave the matrimonial home.  Both think that they will be able to retain the matrimonial home.  Robert because he has a high income and can buy Sally out; Sally because she will be able to obtain assistance from her parents to buy Robert out. 

The situation within the home has become intolerable and there are arguments occurring in front of the children.  Sally has asked Robert to leave but he will not leave the house.

Sally consulted Watson & Watson.  Dennis Grant after considering the mother’s position advised that an application could be made to the Federal Circuit Court of Australia for an Order that Sally have Exclusive Occupancy up until the property matters are fully determined by a Court or the parties settle the financial matters between them.  An Exclusive Occupancy Order allows one party to reside in the home and requires the other to move out and stay out of the home.

The Court decides this type of case in accordance with the principles in Davis and Davis.

In Davis and Davis (1976) FLC 90-062 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 (at p 75,309):

“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.”

In Sally’s case the Court took into account:-

  • The means and needs of the parties.

In this case the Court took into account the fact that Robert had a high disposable income and could easily accommodate himself  elsewhere, without the sale of the house.

  • The needs of the children. 

The Court accepted Sally’s arguments that the children needed to stay in the home and be close to their school and other activates.

  • Hardship to either party or to the children.

The Court decided that it would be harder on Sally if the Court allowed the husband to remain in the house and Sally had to find appropriate rental accommodation with the two children.

  • The conduct of one party.

In this case the Court did not find that either party had acted in a way which would affect the outcome of the matter.

Overall the Court decided that the wife should be granted exclusive occupancy of the house.  The Court decided that the hardship to the wife was more significant than the hardship to the husband who could more easily re-accommodate in the short term until the property issues had finally been resolved.

If you and your children are faced with the hardship of having to vacate the family home after the breakdown of your marriage before the finalisation of the property matters between your and your husband, please contact Richard Watson or Dennis Grant whose extensive family law experience you can reply upon to advise and assist you during these difficult times.

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