When your ex won’t move out
Following the breakdown of a relationship it would seem sensible that the parties physically separate and that one of the parties moves out. However, sometimes the matrimonial home becomes a battlefield when ex partners separate. Sometimes the parties cannot agree on who is going to stay in the home after separation and who should move out.
This can be quite stressful and unpleasant if you are required to continue to live with your ex-partner after separation and until a final property settlement agreement is reached regarding the division of assets, which could take months or even years.
We often are asked by clients as to whether they can make their ex partner leave the family home after separation.
Read on to find out how you can make this happen.
Who gets to stay in the family home after separation?
Both parties are entitled to live in the family home after separation. It does not matter who has legal ownership of the house.
One party cannot force the other to leave the house and there is no law which enables you to kick the other person out.
If there are no safety concerns, there is no Protection Order being breached and no criminal activity is taking place, the removal of one party from the residence cannot be forced by the police either.
The situation is different where there has been domestic violence and a party’s safety is at risk. You should contact the police if you or your children are at risk of being harmed.
It is in fact not even necessary for two separated parties to stop living together after deciding to separate and some will continue living separated under the same roof for a while.
However, this does not work for the majority of couples and so one party normally decides to leave the property to alleviate the stress on both parties and make the separation easier.
So what happens if your ex refuses to move out?
Sole Occupation Order – Requires the other party to move out of the home after separation
Under section 114(1) of the Family Law Act, the Court has power to make an injunction if it considers it proper to do so, relating to the use or occupancy of the matrimonial home.
An injunction is an order that prevents someone from performing or requires them to perform a particular act.
Therefore, under the Family Law Act, if you meet the criteria required, you can seek an order for sole occupancy of the former matrimonial home from the Family Court or the Federal Circuit Court which requires the other person to move out.
Unfortunately, it is difficult to force an ex partner to leave the family home.
The Court is of the view that it is a very serious step to order someone to leave their home and the circumstances of the case must be very compelling to convince the court to make such an order.
A sole occupancy order is most frequently made where there is a risk of family violence or a risk of harm to children. When neither of these two factors exist, it is a very difficult case to make.
Where there has been domestic violence, you can also seek a sole occupancy order in the Magistrates Court under the Domestic Violence and Family Protection Act 2012. This type of order can be sought when you apply for a Protection Order against the other party.
It is highly likely that a Court will grant an applicant their occupancy order if their partner makes threats against them and/or if the children are at risk of harm.
If a sole occupancy order is made in your favour, the other party will be in breach of the order if they stay in the home and they will be legally required to leave and to live elsewhere.
What is the criteria for a sole occupancy order?
The court’s approach to sole occupancy applications is set out in the case of Davis [1982] FamCA 73 [10].
The Court may make such order as it considers proper. In other words, there must be a factual basis supporting the injunction sought.
In the exercise of the Court’s discretion, the following principles are treated as guidelines by the Court in determining a sole occupation application:
- An injunction that prohibits a person from living in their home is of such gravity that it will only be granted in exceptional circumstances;
- The existence of tension in the home, short of evidence of unacceptable conduct, is unlikely to lead the court to grant an exclusive order (i.e. tension/discomfort is not enough);
- It is not necessary that an applicant show it is impossible or intolerable for him or her to continue to live with the other party in the home after separation or that there has been conduct by the other party which justifies his/her exclusion from the home.
- The Court must simply be satisfied that the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to live together.
- The test for making an order is an objective test;
- The question is what is fair, just and reasonable. If it be fair, just and reasonable that one of the parties be excluded from the home, then that ought to happen.
- While the decision ought not to be made merely on the balance of convenience, in practice the case will often rest on what the balance of convenience requires. In the case of intense marital disharmony, frequently coupled with assaults by one party to the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have sole occupation of it.
- The matters considered by the Court in determining whether to grant an exclusive occupation order are:
- the needs of any children of the relationship;
- the means and needs of both of the parties including their income and financial situation
- the existence and availability of alternative accommodation;
- the extent that the home is a significant part of any business that a party owns/runs;
- the hardship to either party and the hardship to any children;
- the conduct of the parties which may justify an exclusion order;
- how long the parties have been separated;
- who is seeking to retain the property ultimately;
- any domestic violence against one of the parties.
The above principles were set out in the recent cases of Sieling & Sieling and Valentini.
In determining whether it is proper to make an order for sole occupancy, the Court needs to decide the matter in two stages:
- First, should the property be occupied by one party?
- If so, which party should leave the property?
In determining whether one party should occupy the property, the Court’s will consider each of the principles above, and primarily, whether it is reasonable, sensible or practical to expect the parties to remain living in the one home and whether the order for sole occupation is therefore necessary, or whether it is simply being made for convenience.
If the Court deems it is fair, just and reasonable for one of the parties to be excluded from the home, then a sole occupation order will be made.
An occupancy order will only be made where the needs of the Applicant are greater than the needs of the other party.
The Applicant if successful, is then able to live in the house without the other party until a final property settlement agreement has been reached.
Case Study: Tailor [2019] FamCA 383
It is very difficult to convince a court that it is proper for a sole occupancy order to be made where there has not been domestic violence and there is no risk of harm to a party or children.
In the case of Tailor, it was successfully argued that the Wife should be ordered to leave the home. This case involved a very elderly couple and the Husband successfully argued that the wife’s presence and harassment of him in his frail state was significantly harming his health.
One important factor which supported the making of an order in this case was that the Wife had alternative accommodation available to her and the Husband has agreed to continue to financially support her.
Case Study: Valentini [2024] FedCFamC1F 602
In the recent case of Valentini the Wife successfully argued that the Husband should be ordered to leave the matrimonial home.
In this case, the wife sought alternate orders. Her primary order sought was that she have exclusive occupation of the matrimonial home. In the alternate, the Wife sought orders that she have temporary exclusive occupation of the home until she is able to find rental accommodation and purchase furniture, and that she receive spousal maintenance from the Husband of up to $8,500 per week and $100,000 by way of lump sum payment from the Husband, to purchase furniture and removalist expenses.
The property pool was in excess of $200,000,000 and so there was no doubt the Husband could make the payments sought by the Wife to pay for the Wife’s rental property, as proposed in her alternate orders.
The Husband opposed the Wife’s order seeking sole and exclusive occupation of the matrimonial home and proposed that the parties continue to live together. In relation to the Wife’s alternate orders sought, the Husband conceded there should be a payment of $4,000 per week for a rental property, and that the wife did not need $100,000 to purchase furniture as the parties could simply divide the furniture in the home.
The relevant factors that swayed the court in this matter to grant a sole and exclusive occupation order to the Wife were:
- The Wife suffered from a chronic disease and various other health conditions, that required regular treatment from her practitioners;
- The property (suburb G) that she was living in, post separation, was run down. It did not have the appropriate amenities such as air con and heating, it was not insulated and had mould;
- The evidence from the Wife’s medical practitioner was that the conditions of the Suburb G property exacerbated her health issues. The Wife’s medical practitioner was also concerned about her psychological state if she were required to live in Suburb G. It was untenable for her to continue to live in that property.
- The property at Suburb G was too far away from her medical practitioners. Her medical practitioner advocated that she lives close to her established health care team, either at the matrimonial home or somewhere nearby, and to do otherwise would prejudice her capacity to attend further appointments.
- The previous interim orders made by consent for the parties to share occupation of the matrimonial home, under conditions, pending the interim hearing, were not complied with by the Husband in that he was entering parts of the home occupied by the wife. The Wife asserted she found the Husband’s behaviour intimidating and scary. She also asserted that on one date, he blocked her access into the driveway of the home by placing objects across the driveway and when she tooted her horn and pointed to the object he swore at her. The Husband’s own evidence was that he sought to have access to various parts of the home to be enjoyed by the Wife.
- The Husband had plenty of money to buy the items required so he could live in the sizeable matrimonial home so as to arrange their living arrangements such that they did not come into contact with one another. He chose not to.
- The Husband was home less often than the wife, and it was less of an imposition for him to find alternate accommodation.
- Each party sought to retain the matrimonial home on a final basis. The making of an exclusive occupation order did not defeat an order being made on a final basis as sought by either party.
The Judge was quite perturbed that these parties, who had so much money, were not able to make arrangements to resolve these matters and commented:
“In circumstances where one party [the husband] seeks to continue an arrangement that would continue to bring the parties into contact in the knowledge that it causes the other at times to feel intimidated is unfathomable and leads me to be comfortably satisfied that it would not be reasonable, sensible or practicable to expect both parties to continue to live together in the same home and that an order for exclusive occupation is necessary.”
Given the sizeable property pool the court did not have to concern itself with the issue of financial hardship or prejudice associated with the Husband finding alternate accommodation.
The Husband was ordered to vacate the matrimonial home in 60 days.
Can I make my ex leave the family home after separation?
If you have recently separated and you have questions relating to separation and who stays in the home after separation, please do not hesitate to contact us on 3465 9332 to book a reduced rate consultation with one of our experienced family lawyers to discuss your individual circumstances.
