Sole Use and Exclusive Occupation of the Former Matrimonial Home after Separation

One dilemma which a party may face following separation is how to secure suitable accommodation in circumstances where the other party refuses to leave the former matrimonial home.

The situation is made even more challenging when finances are not available to a party to obtain alternative accommodation for himself/herself and/or the children and there are allegations of family violence and/ or abuse.

Obtaining exclusive occupation of the former matrimonial home, and effectively evicting your former spouse, is a difficult task to achieve.

An order seeking sole use and exclusive occupation of the former matrimonial home is an injunctive order made pursuant to s.114(1)(f) of the Family Law Act against your former partner from entering the home. The Court must be satisfied that, inter alia, it would be “proper” to make such an order/injunction.

In determining whether the Court considers it “proper” to grant an order for sole use and exclusive occupancy, the following factors are taken into account:

• the means and the needs of the parties;
• the needs of any children;
• hardship to either party or children; and
• if relevant, conduct justifying one party being expelled from the home.

It is important to note that inconvenience of a party is not a factor that is taken into account.

The Court has stated that it may be appropriate to make such an order where the situation between the parties is… “that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together”.

The onus of proof lies with the applicant to satisfy the Court on the balance of probabilities that such an order should be made.

Ultimately each case will be determined on its own facts and the Court has a degree of discretion in granting such an order.

By Pierre Hawach, McAuley Hawach Lawyers.

McAuley Hawach Lawyers
Level 7, 9 George Street
Parramatta NSW 2124
Telephone: (02) 9633 1826
Facsimile: (02) 9687 8114 (02) 9687 8114

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