You’ve Separated, but Who Stays in the Home?

About Separation

You’ve Separated, but Who Stays in the Home?

Some couples may separate but continue to live under the one roof.

Separation can be a very difficult and stressful time and many people find that creating physical distance and starting to live independently will make the separation process easier for everyone involved, particularly if there are children who would otherwise be exposed to ongoing conflict.

When you separate, both parties are entitled to live in the family home regardless of whose name is on the lease or title of the property. One partner cannot force the other to leave, and a person is not required to leave just because the other wishes for it.

In the event that you find yourself in a situation where your ex-partner refuses to leave the home but you do not have the financial means to secure alternative accommodation, you may in some instances be able to seek a sole occupancy order through the Family Courts.

When considering a sole occupancy application, the Court will assess factors including but not limited to:

• The needs of any children of the relationship;
• The means and needs of both parties, including their incomes and financial circumstances, the existence and/or availability for alternative accommodation, and to what extent the home is a significant part of any business that a party owns or runs;
• The hardship to either party and the hardship to any children;
• The conduct of the parties; and
• Any physical assault or violence against one of the parties.

The former matrimonial home will form part of the asset pool, irrespective of which party remains living in the home after separation and the Court can still make Orders as to the future ownership of the home whether the home is owned in one party’s name or in joint names. Vacating the home will not affect a party’s entitlement to any property settlement if that entitlement already exists.

If you are the person who vacates the former matrimonial home, you may continue to have legal obligations to meet ongoing financial payments such as mortgage repayments, rates and utilities.

If you have questions about how remaining in and/or vacating the former matrimonial home may affect you, contact one of our experienced Family Law solicitors at Merridy Elphick Lawyers.