Following the breakdown of a relationship it would seem sensible that you physically separate and that one of the parties will move out.
However, sometimes the matrimonial home becomes a battlefield when ex partners separate but they cannot agree on 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 settlement agreement is reached, which could take months or even years.
We often are asked by clients whether they can make their ex partner leave the family home after separation.
Read on to find out.
Who gets to stay in the family home when you separate?
In the event of a separation, both parties are entitled to live in the family home. 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
Under section 114 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  FamCA 73 .
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 or that there has been conduct by the other party which justifies his/her exclusion from the home.
All that is necessary is “that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.”
Therefore, in determining whether it is proper to make an order for sole occupancy, the Court has regard to two main factors:
- 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 looks to whether it is reasonable, sensible or practical to expect the parties to remain living in the one home and whether the order is therefore necessary, or whether it is simply being made for convenience.
There are several considerations of the Court in determining whether an exclusive occupation order is ‘proper’, such as:
- 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;
- how long the parties have been separated;
- who is seeking to retain the property ultimately;
- any domestic violence against one of the parties.
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  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 recent 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.
Can I make my ex leave the family home after we have separated?
If you have recently separated and you have questions relating to separation and sole occupancy, please do not hesitate to contact us on 3465 9332 to book a reduced rate consultation with our family law expert, Courtney Barton.