Problems during separation in Australia: who can live at home without out?

One of the most difficult issues facing people going through a separation is what happens to them if they move out of the family home. This raises a question that is of great concern in Australia: who has the right to remain in the family home during a separation? In this article, William WANG, a partner at AHL Law in Sydney, takes us through the legality of this.

After years of living together, when couples decide to separate, this reality can certainly be daunting for those who do not have a steady income and nowhere to go. Just as some people have relied on each other for financial support throughout their marriage, once they separate, they are left in the predicament of not knowing where to live and may even be at risk of becoming homeless.

Dissolution of Economic Relationships and Changes in Support from Family and Friends

Dissolving a financial relationship between two parties who once lived together is no simple matter and usually takes months or even years. During the separation period, many people will choose to first go to friends or family and stay on their couch for a while. In the beginning, friends and family are usually happy to help, but as time goes on, problems arise. For example, a couple separated, the husband in the friend's home couch for half a year, time, the friend, although the mouth did not say anything, but the enthusiasm is obviously not as good as in the beginning, the husband himself also feel more and more embarrassed.

Common Separation Residency Options

In most cases, when couples separate one partner will decide to leave the family home, but there are special circumstances. So what do you do when neither party wants to leave? This is a real headache.

Questions about residency during separation in Australia

In Australia, many clients will often ask their lawyers questions such as, "Can I ask my husband to move out of the house?" "Do I have to move out?" "Who has access to the matrimonial home during separation in Australia?" In fact, in Australia, there are no clear rules about who can stay in the home during separation, and the law does not compel either party to move out after separation, and this will not be done with reference to how gender is.

Provisions on residency during separation

Legally, whether or not a person has a registered title, both parties to a marriage or de facto cohabitation have the right to continue to live in the family home until the property issues between them are finally resolved.

Complex situation where neither side wants to leave

If neither party wants to leave the family's current home, things can get tricky. Although both parties can be considered separated if they live under the same roof, the lines of separation become blurred.  Often, in order to be legally recognized as separated, one party needs to clearly inform the other that the relationship has completely broken down and that they can no longer behave as if they were in a relationship, such as no longer sharing a bedroom. However, in reality, many couples find this too difficult to do - after all, they have lived together before and it's not easy to draw the line immediately. Moreover, living close to each other after separation tends to increase conflict between the two parties considerably, which not only puts a burden on the emotional health of the couple, but also has an impact on the children that cannot be ignored. Imagine how painful it must be for a child to live in a home environment filled with tension and watch his or her parents argue every day.

Supposedly, many of us have heard of incidents where one party comes home to find that the locks on their home have been changed and they can't get into their home. While legally it is the homeowner's right to change the locks on the house, doing so without informing the other party is likely to trigger a heated emotional confrontation that will worsen an already strained relationship. As in the case of a couple who separated, the wife changed the locks in a fit of pique, and the  husband came back to find that he couldn't get into the house, and was so enraged that the two of them had a huge fight right at the door, drawing a crowd of neighbors, and making it impossible to end what  could have been a peaceful discussion.

As this tension continues to escalate, it may even jeopardize the security of the parties, thereby increasing the likelihood of an application for an intervention order.

The solution of wanting the other person to move out ,

If it is too difficult to continue living in your ex's home, but you don't want the police to get involved, and moving out on your own isn't an option, then many people wonder, "How can I get my ex to move out?" This is where we can apply for a "Sole occupancy order".

In Australia, there is a sole occupancy order that may solve this problem. Just as there was an English bulldog that was caught in the dilemma of who could stay in the house when the owner's husband and wife separated, a sole occupancy order is like a key to solving this dilemma. While both spouses have an automatic right to remain in the family home after separation, either spouse can apply to the Federal Circuit and Family Court of Australia for a sole occupancy order under 114 of the Family Law Act to allow themselves to live alone in the family home while requiring the other spouse to move out.

But the court's considerations in granting a separate occupancy order:

However, in deciding whether to grant such an order, the court will examine the circumstances of each case and consider a large number of factors. For example, whether a party will assume primary care of children under the age of 18 once the parties are no longer living in the same household and what is in the best interests of those children; the earning capacity of the parties and whether a party can afford to look for rented accommodation elsewhere; whether alternative accommodation can be provided for the parties; and the behavior of the parties to date, including whether there have been allegations of domestic violence and the risk of the parties continuing to live in the property, among other things. property, etc. Separate occupation orders will usually only be granted where the court finds that it is unreasonable, unwise or impractical to require the parties to continue to live together in the family home. And, although a sole occupancy order will be granted in the rare case where there is no allegation of risk of domestic violence, it is generally only in very exceptional circumstances. Therefore, before applying for such an order, it is important to consult with a solicitor who is experienced in family law to avoid unnecessary complications.

There is also the case of a legally mandated move out: Domestic Violence Orders (DVOs)

The situation is even more serious if abuse and other forms of domestic violence are taking place. If a party is concerned for his or her  safety or that of the children, he or she must seek professional advice immediately and report his or her concerns to the police. The police will investigate the allegations and then determine whether there are sufficient grounds to apply to the Magistrates' Court for a Domestic Violence Intervention Order. The conditions of these intervention orders vary but generally prevent the respondent from going to the residence of the affected family member, which means that the  respondent must move out of the family home or be in breach of the intervention order.

If you have further questions about who can stay in your home during a separation in Australia or similar situations, feel free to call our friendly team directly or request a call back by contacting us for professional answers and assistance.