Deciding whether to leave the matrimonial property can be a complex issue in Family Law matters. Often, parties will remain living separated under the one roof. However, this is not a long-term solution and does not work for all separating parties. New South Lawyers' Family Law team answers the commonly asked question about who stays in the house during divorce?

Who stays in the house during divorce?

After separation, both parties are legally entitled to remain in the property and there is no presumption that one party must leave. Therefore, one party cannot ‘force’ the other out of the house. (Although, if the court is concerned about domestic violence, they may make an occupancy order). However, your safety and the safety of your children is paramount and if you are in danger, do not remain in the home.

After separation if you and your former spouse are able to agree upon how any financial resources or liabilities are to be split then an agreement can be formalised through consent orders. However, if you are unable to come to an agreement, the Court is able to assist.

Occupancy orders

Under Section 114 of the Family Law Act 1975 (Cth) the Court can make an injunction ‘relating to the use of occupancy of the matrimonial home’. Such an Order could prevent a person from being able to live in the home. However, Courts generally deem Occupancy Orders a significant matter. And, they are most often ordered in instances that a person is in danger.For these Orders, the Court considers two points: a)  whether the property should be occupied exclusively by one party; andb) if so, which party is granted exclusive occupation.

Exclusive occupation

Additionally, the party that is seeking an Occupancy Order is responsible for establishing to the Court why they should receive exclusive occupation. The Court also considers whether it is reasonable or ‘proper’ to exclude one party from the marital home. When determining whether it is ‘proper’ or not, the Court looks at: Firstly, the impact on and needs of the childrenSecondly, the financial means of both parties;Thirdly, the parties’ conduct; andFinally, any allegations of physical abuse or domestic violence.  New South Lawyers’ communications are intended to provide commentary and general information and not relied upon as legal advice. Seek formal legal advice in particular transactions or on matters of interest arising from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.