Deciding Who Stays in the Matrimonial Home After Separation

Following separation, the practical issue of who is to live where is likely to loom large. Some couples, for practical reasons and notwithstanding their separation, remain living ‘under one roof’. The issues surrounding this scenario was recently covered in our blog  How to Prove Separation While Still Living Together. Other couples may be able to resolve the issue as to who stays and who moves out of the matrimonial home between them. However, in other circumstances, the Court may be asked to decide. The Court has the power to order the exclusive occupation of the matrimonial (or de facto relationship) home.

What will the Court consider in making an exclusive occupancy order?

In Davis & Davis (1976) FamCA 38, the Court said that, in deciding whether to grant exclusive use or occupancy of the matrimonial home, the matters to be considered should include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

An application for exclusive occupancy would need to show why it would be unreasonable for both parties to remain in the matrimonial home.

Contact our Separation and Family Lawyers in Sydney NSW

If you have separated recently and have questions about separation or the continued occupancy of your home, please contact the experts at Szabo & Associates Solicitors on 02 9281 5088 or complete the online contact form.