Who Stays in the House if We Separate?

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Before any discussion about who gets what and how the kids will be cared for, perhaps one of the most distressing aspects of family breakdown is the more immediate concern about who gets to stay in the house and who has to leave.

While it’s not universally the case, in many cases where a couple decide they have to separate, this necessarily means physical distancing from each other: one moves out while the other one stays. This occurs for lots of reasons, many of them very practical, including acting as a circuit-breaker to stop the parents constantly arguing in front of their children, or in more serious cases to prevent or stop domestic violence.

While people may assume the person who owns the house is the one who chooses whether to stay or go, this is not always the case as we’ll outline below.

Each family situation is different and so the solution to who remains in the former family home also varies depending on the circumstances. This article looks at some of the options.

Ideally you and your ex-partner can come together to calmly discuss the options in the event you both decide you can no longer live together. But in many cases this will not be possible due to the acrimony of the split. In this situation you should consider engaging a family lawyer who can help you understand your rights and obligations as well as facilitate mediation and other dispute resolution methods to keep you out of court.

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What are the key issues regarding who lives where once a couple separates?

If your relationship break-up still permits civil discussion with your ex about who should stay and who should go, the conversation should encompass a number of pertinent issues. If there are children from the relationship, their best interests should be paramount. What would be the least disruptive arrangement for them? A stay-at-home mother who ensures the kids get to school with a packed lunch and freshly washed uniform every day, versus a father who works long hours requiring him to leave early and return late – or indeed a reverse of that example – suggests an obvious candidate for who should remain in the house with the kids.

That’s probably a best-case scenario. In other separations, one party will simply order the other one to “get out”. One may change the locks to the residence to prevent the other gaining entry. Both parties may refuse to leave the home, creating ongoing tension and potential for conflict. In worst-case situations there will be threats of police action, apprehended violence orders, or a vulnerable partner who needs to flee the violence of an estranged partner.

In any of these more serious situations, there are options. The court can make an order for ‘exclusive occupation’ of the home that specifies which party should continue to live in the home, regardless of who owns the house.

This order is not granted automatically. Unhappiness and frustration about ongoing shared living arrangements are not enough on their own for an exclusive occupation order to be made. Instead, the court needs to be satisfied that it is not reasonable or sensible or practicable for the parties to remain in the home together. Some – but not all – the factors the court will take into account in deciding on exclusive occupation include:

  • The need to maintain the stability of living arrangements for children of the relationship;
  • whether there is family violence present, or allegations thereof;
  • whether there is conflict between the ex-partners that is causing emotional, psychological or physical harm to either party and the children; and/or
  • the affordability (or otherwise) of alternate accommodation taking account of the particulars of the case – including the specific needs of either party.

If one party believes they are in danger from the other as a result of the separation, the Magistrates Court in Queensland can make a Protection Order that includes a condition that your former partner must leave the home, even if they own the home. Such orders are applied only where you are fearful for your safety and not for the sole purpose of removing your former spouse from the home. Ideally you should discuss the need for a Protection Order with a legal representative in family law.

How we can help

The time after separation and before a couple agrees on how to settle their living and financial affairs, or has a court do it for them, is often the most difficult. Conflict and tension can flare into bitter recriminations and sometimes, violence. If you are going through separation, it’s sensible to speak with legal professionals who have expertise in all areas of family law, such as Big Law. We offer understanding combined with compassion for your situation and can help you navigate the best way forward

Contact us by phone 1800 431 604 or email mail@biglaw.com.au to schedule an appointment today.

At Big Law we provide holistic legal solutions to legal matters.

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