When a couple separates, both parties 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 occupancy orders in exceptional situations including where:

1. one spouse is perpetrating family or domestic violence on or making threats against the other;
2. if the children are affected by having the parents residing together; or
3. if work has been done on the house to accommodate someone’s disability.

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 FCFCOA makes these orders cautiously.

The Court may grant an injunction related to the use of the matrimonial home under s114 of the Act in a marriage, and s114 (2A) in de facto situations. The Court may make such an order as it thinks proper, according to the merits of each circumstance.

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. In deciding whether to give a spouse exclusive use or occupation of the matrimonial home, the court will consider:

1. The nature of the parties’ relationship;
2. Each party’s financial position (e.g. whether either can afford to live elsewhere);
3. Whether one party is perpetrating family violence on the other;
4. Whether the parties own another property that one party may temporarily move into (such as a holiday house or investment property);
5. Questions of convenience or hardship;
6. If there are children, whether their school or support network is nearby; and
7. Whether the application is necessary and reasonable.

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 (called an Exclusion Order). However, if this order is not granted through the ADVO, the FCFCOA will take the existence of an ADVO into account when you apply for exclusive occupation.

What now?

Contact us for advice if you are considering applying for exclusive occupation.