Who gets the home: Exclusive occupation after separation

Have you considered separating from your husband? Or are you recently separated, but still living in the same house (and it just isn’t working out)? An application for exclusive occupation may be something you should think about. Lisa Wagner from Doolan Wagner Family Lawyers explains what it all means…

It is a very serious matter to turn a husband or wife out of their home, and yet after separation it can become nearly impossible to keep living in the same house. In some cases, not only is this uncomfortable but it can be dangerous or likely to lead to significant coercion, intimidation or manipulation. But with the current state of the Sydney housing market and price of rentals, it can be very difficult to even think about affording to live separately.

If you find yourself walking on eggshells around your partner or don’t think you could leave them because you want to make sure your children have a place to live, then read on to see whether exclusive occupation is an option for you.

Exclusive Occupation

There are some cases where it is not reasonable, sensible or practicable for people to keep living in the same home after separation. In our experience, where the mother has stayed at home to care for the children and the father has been working full time it can sometimes be difficult to see how the mother could ever leave when she cannot afford rent on her own. Where there are additional concerns due to safety or intimidation it may be appropriate to consider applying to the court for exclusive occupation.

Considerations of the court

  1. Should the house be occupied by only one party to the relationship?
  2. Which party should leave?

It is not enough for an order of exclusive occupation to be sought simply because life would be more peaceful if the other party were to move out. Given the serious nature of an order for exclusive occupation, which forces the other person to obtain new residential facilities on short notice, the court needs to be satisfied that it is appropriate in all the circumstances.

While each family is unique, in our experience some of the important issues to consider are:

  1. Whether it is intolerable, or impossible for the parties to live in the same house together.
  2. The means and needs of each parent, such as the financial capacity of either party to obtain alternative accommodation.
  3. The needs of any children, such as who is the primary carer and where the child attends school.
  4. Hardship to either party or the children if they were required to leave the family home.
  5. The conduct of the person who it is proposed should be excluded from the residence.

When children are involved the court will often be swayed by who is to keep the children in their primary care – “because the person who keeps the children has to stay there; there can be no question about that”.

Lisa Wagner is an Accredited Family Law Specialist, a Family Dispute Resolution Practitioner and the principal of Doolan Wagner Family Lawyers. Lisa has been successfully helping people with their separation and divorce for over 20 years. Details are on the directory. Lisa practices from offices in St Leonards and lives with her family on the Lower North Shore. To find out more, please feel free to contact Lisa at [email protected] or on 9437 0010.

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