Separating from a partner is hard enough without also having to work out who’s staying in the family home. Some couples manage to keep living under the same roof for a while after separating, but that’s not always realistic, especially where things have turned hostile or there’s a risk of family violence.
If you can’t reasonably continue living together and want sole occupation of the family home while parenting and property matters are being resolved, you may be able to apply for court orders giving you exclusive occupation of the property. Here’s what an exclusive occupation order is, when the court may make one, and what factors are taken into account.
What Is an Exclusive Occupation Order?
An “exclusive occupation order” is a commonly used term for a court order that gives one party the sole right to occupy the family home, and may require the other party to leave the property for a period of time while parenting and property matters are resolved.
It doesn’t decide who ultimately owns the house or how it will be divided later. Those issues are dealt with separately as part of the property settlement process. It’s a practical, interim measure to deal with the living situation while everything else is worked through.
Who Gets to Stay in the Family Home After Separation?
There’s no automatic rule about who gets to stay. It’s not decided by whose name is on the title, who moved out first, or who earns more. Instead, if you and your ex can’t agree, it’s up to the court to weigh up the situation and decide what’s reasonable.
The best starting point is always trying to reach a practical agreement between yourselves, for example, whether your ex could stay with family or friends for a period. If that’s not possible, or there are safety concerns that make negotiating directly unsafe, applying to the court for an exclusive occupation order is the next step.
What Factors Does the Court Consider?
The court has wide discretion here, and every case is decided on its own facts. In broad terms, it will usually weigh up:
- whether the application is reasonable in the circumstances
- the interests of any children involved
- the relationship between the parties
- the financial position of each party
- whether it’s practical and financially possible for either party to find alternative accommodation
- any issues of family violence
- other options available, such as temporarily staying with family or in an investment property
- the convenience or hardship to either party of having to move out
- any other matter the court considers relevant
The court isn’t limited to this list and will ultimately make whatever order it considers appropriate given your specific circumstances. Where children are involved, a family report is often used to help the court assess what’s in their best interests, in much the same way as broader parenting arrangements are decided.
How to Apply for an Exclusive Occupation Order
If you and your ex can’t reach an agreement, you (or your lawyer) will need to file an application with the court, setting out why you’re seeking exclusive occupation and the evidence supporting it, such as safety concerns, the impact on any children, or the practicality of alternative living arrangements for the other party. If your matter is being heard at Parramatta, you may find it helpful to understand what to expect when you get there.
Because these applications rely heavily on evidence and how persuasively your circumstances are presented, it’s worth getting legal advice before filing, particularly if there’s any urgency involved, such as a safety risk.
What Happens to the Other Party?
If an exclusive occupation order is made, the other party will generally be required to leave the property and stay away for the duration of the order. This doesn’t affect their legal or financial interest in the property itself. It simply changes who’s living there while property and parenting matters are being resolved.
If the other party refuses to leave despite an order being made, that’s a serious matter and there are enforcement options available through the court.
Frequently Asked Questions
Can I stay in the family home if my ex won’t leave?
Possibly, if you can show the court it’s reasonable for you to have exclusive occupation, for example because of family violence, the impact on children, or the other party having a realistic alternative place to stay. It’s not automatic, and the court will look at your specific circumstances.
Does an exclusive occupation order affect who owns the house?
No. It only deals with who lives in the property while family law matters are being resolved. Ownership and how the property is ultimately divided is decided separately, as part of your property settlement.
How long does an exclusive occupation order last?
It’s generally an interim measure, lasting until your property and parenting matters are finally resolved, either by agreement or final court orders, rather than being a permanent arrangement.
Can I apply for an exclusive occupation order if we’re not married?
Yes. Exclusive occupation orders are available to de facto couples as well as married couples under the Family Law Act, provided you meet the relevant requirements for a de facto relationship.
Talk to Coleman Greig’s Family Law Team
If you’ve just separated and aren’t sure where you stand in relation to the family home, get in touch with Coleman Greig’s family law team today for advice tailored to your situation.
