Understanding access to the marital home during separation in Australia

In the immediate aftermath of a separation, one of the most pressing issues is who will live where. Some couples are able to remain living under the same roof whilst separated, but for others this just isn’t possible. To further complicate the issue, the care of children can make the decision even more difficult.

This can apply to all couples, whether they own the home that they live in or rent it. This blog article will aim to provide some insight into the rights and entitlements you may have after separation.

Who has access to the marital home during separation in Australia?

Where you jointly own the marital home, both of you have an equal right to access and live within that home. One exception, however, can be a family violence order. Additionally, some parties have a financial relationship whereby only one of them owns the marital home, which can further complicate the issue.

It usually becomes clear post-separation that one of you intends to continue living in the marital home, and one of you will be moving out. If you’re relatively amicable, it’s usually best to discuss between yourselves who will be staying at the home, who will be moving out, who will be paying certain bills, and how the departing party will retrieve their belongings.

With regard to the outgoings of the marital home, you both remain liable for these expenses so it’s important to ensure both of you are on the same page as to who is paying what.

Who gets the marital home after separation in Australia?

There is no hard and fast rule about who keeps the marital home. On occasions, it may be clear that only one party is in a position to refinance and retain the home. Sometimes, neither party will be able to, and the home may need to be sold.

Or, both parties may be able to retain the home; in this circumstance, there is usually one party who expresses a strong wish to do so. Whether a party remains in the marital home does strengthen their case for retaining the home, though it is not the sole determining factor.

Can I change the locks during my property settlement?

Legally, if you are an owner of the property, you can change the locks. However, this type of action can sometimes be copied by your ex-partner and degrade into a ‘tit-for-tat’ which is ultimately a stressful and costly endeavour. This kind of behaviour only serves to benefit your local locksmith.

If it is acknowledged that one of you is staying at the home, that party may want to consider changing the locks after some time in the interests of their own safety. However, it is advisable to let the ex-partner know so that they are not caught unawares. An open dialogue is always preferable and ultimately less costly than the alternative.

Can I change the locks after my property settlement?

In the vast majority of circumstances, your property settlement will have separated your finances with your ex-partner on a final basis. The Family Law Act (FLA) has a ‘clean-break’ principle to ensure that parties do not remain financially attached to one another.

Therefore, your property settlement being finalised should mean that the marital property is now, solely in your name if that was the outcome you agreed on. Once settled and finalised, you can change the locks whenever you like.

Sole or exclusive occupancy orders

If issues persist over who will be staying in the home, you can apply for sole or exclusive occupancy orders. These orders are an injunction granted by the Federal Circuit and Family Court of Australia (FCFOA) that prevents another party using or occupying the marital home.

They will only be granted through an application to the FCFOA. However, these types of orders are rare due to the seriousness of excluding a person from their own home. The party seeking the injunction has a high burden to satisfy.

The considerations of the Court can be seen in a case such as Kimberley & Kimberley. The Court had to consider the means and needs of the parties, their conduct, any hardship to the parties or the children, and the needs of the children, among other things.

Every case of this type will depend on the facts at hand. Here, the mother was unable to convince the Court to grant the order as her evidence regarding the need of the children and the hardship to her not having exclusive occupation, was insufficient.

The matter of Saveree & Elenton was a different matter, wherein the mother was able to satisfy the necessary requirements. In particular, the needs of the children were such that it was ‘proper’ that the mother should have exclusive occupancy.

Closing

If you’re involved in a separation, it’s important to remember that you do have rights concerning where you live. The best scenario for everyone involved, particularly children, is where ex-partners can have a productive conversation between themselves to determine who stays in the marital home.

If you cannot agree, you can apply to the Court for a binding order.

Separation is never an easy time and is only complicated by the questions of who is living where. If you have any questions, or you are unsure about the legal position, please contact the expert Family Law Team at Turnbull Hill Lawyers.