I want them to leave! – Who gets to stay in the family home?

I want them to leave! – Who gets to stay in the family home?

Amelia Cox – Family Law Team Leader

After separation, some couples whether married or de facto, choose to continue to live together in the family home until they have resolved their parenting and property matters. In family law terms this is called being “separated but living under one roof”. Parties may choose to continue living together for practical and economic reasons as well as to make life easier for their children.

But what can you do if living together is just not possible? For example, if your separation has been especially hostile or there are issues of family violence living together may simply not be suitable or safe. Additionally, it is not in the best interests of children to expose them to continued argument and discussion.

Now before you change the locks, we recommend that you contact your Family Lawyer Gosford for advice.

If possible, we recommend that you schedule some time with your partner to discuss your current living arrangements. Are there any practical solutions? Can one of you live temporarily with family or friends?

In the event that you and your partner cannot agree, you might consider making an application to the Federal Circuit & Family Court of Australia for an exclusive occupation order to continue to reside in the family home without your partner. This type of Court Order is called an “injunction” which can be made under section 114 of the Family Law Act 1975. 

The Court will treat each individual application for injunction differently carefully considering each parties’ circumstances. The Court must be satisfied that it would be “proper” to grant the injunction providing exclusive occupation and will generally consider the following factors:

  • whether the application for injunction is reasonable or unnecessary;
  • what would be in the best interests of any children;
  • the relationship between the parties;
  • the financial circumstances of the parties and whether it would be financially practical for one or either of the parties to vacate the family home;
  • whether there has been instances of family violence perpetrated by either party;
  • any alternative accommodation options;
  • if it would be convenient or cause hardship for either party to vacate the family home; and
  • any other matter the Court considers to be relevant.

The Court has very wide discretion and will consider any matters it considers to be relevant to determining the application for injunction.

How can we help?

The friendly and skilled Family Law Team at Brazel Moore Lawyers are available to assist you to negotiate or seek orders for exclusive occupation of your family home.

If you need advice regarding your family law matter, please contact Brazel Moore Lawyers on 4324 7699

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