A separated couple can continue living separately under one roof whilst they finalize their property and parenting arrangements This arrangement is economically practical if the parties are on friendly terms.

When this arrangement is not viable, a dispute may arise as to who is to leave the family home.

Unless there is a sole use and occupation court Order in place, both parties to a marriage or de facto relationship are entitled to live in a jointly owned family home. This is often one of the main causes of disagreement following the breakdown of a relationship. In that event, seeking an order for sole occupancy may be an appropriate solution.

What is a Sole Occupancy Order?

A sole occupancy order is a court Order which stipulates that the other party needs to vacate the property within a short time period. As it’s a serious matter to turn a person out of their home, the court usually makes sole use and occupancy Orders only in exceptional situations.

How can the Court assist?

The Federal Circuit & Family Court of Australia (FCFCOA) has powers under the Family Law Act 1975 (the Act) to make an order that one party has sole use and occupation of the former family home. However, as ordering someone out of their own home is a big decision, the court makes these orders cautiously.

Exclusive occupation orders

A party seeking sole occupancy of the former matrimonial home should file an application for exclusive occupation with the Court which will apply while property matters are being resolved.

Family violence

If you are the victim of family violence, you should apply to the NSW Police for an apprehended domestic violence order (ADVO) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

One of the conditions of an ADVO may remove your family member from your home (an “Exclusion Order”). However, if this order is not made in an ADVO, the FCFCOA will take the existence of an ADVO into account when you apply for exclusive occupation.

Here to Help

Contact us now for no-obligation free initial telephone advice about exclusive occupation orders.