For some couples, the concept of living separated under one roof is achievable. For others, continuing to live with your ex-spouse in the same house, is neither reasonable, nor practical.
Most infamously in recent times, Phil Collins’ former partner, Orianne Cevey, allegedly conducted an ‘armed occupation and takeover’ of Collins’ $40 million Miami Beach mansion, in an attempt to gain exclusive possession of the property. It was reported that Cevey changed alarm codes, blocked the surveillance cameras and barred entry whilst Collins was not at home, in attempt to retain possession of the property.
For obvious reasons, this course of action is not recommended.
So, if not by agreement, how is the question of which party is to remain living in the former matrimonial home, determined?
What is exclusive use and occupation?
Exclusive use and occupation of a property is an order which provides and enables one party (and in many cases, their children), the legal right to occupy a property. This right is for a specified period and usually pending determination or agreement as to a final property settlement.
Parties can apply to the Family Court for this order, requiring the other party to vacate the property within a short time period.
In Phil Collins’ case, factors that were considered by the Court included the fact that both couples had alternate accommodation, the legal ownership of the property and the valuable belongings which remained in the property, that Collins was fearful Cevey would destroy.
How to get an order for exclusive use and occupation, in Australia
The concept of exclusive use and occupation is (unsurprisingly) highly discretionary in Australian family law. However, there are a myriad of factors the Court must consider when making this order, if it is first determined that it is not reasonable, or practical for the parties to live in the same house.
These factors include:
- Means (i.e. financial circumstances) and needs of the parties
The parties’ respective financial circumstances (including their respective incomes, financial resources and access to funds) and whether one party is able to afford alternate accommodation, must be considered.
- The needs of (any) children
The Court must give consideration to what is in the best interests of the children and the effect on the children, if one party were to remain in the former matrimonial home.
In the case of Sieling, consideration was given to whether the children’s living arrangements would be more stable if they were able to live with the primary carer, in what had been the family home, rather than being subjected to “the vagaries of rental accommodation”.
- Conduct of one party
Does the conduct of a party justify the need for an exclusive use and occupation order and consequently, the expulsion of a party from the former matrimonial home?
Is there a history of abuse or domestic and family violence perpetrated, satisfying this need? Perhaps a party is engaging in improper conduct such as intimidation, preventing the other party from continuing to reside in the home. In these cases, one party may require the other party to be restrained from entering upon the former matrimonial home.
Is it the case that one party is maintaining the property (both financially and aesthetically) and it can be established that the other party cannot maintain the property to the same standard?
- Where does the balance of convenience and hardship lay
It must be determined for whom is it less convenient to have live away from the former matrimonial home. In the case of Fedele, the Court determined that notwithstanding:
- the husband:
- conducted his business from the former matrimonial home; and
- had been living in the property solely for a considerable period of time after the breakdown of the parties’ marriage,
- the wife had alternate accommodation, living with her father (albeit, in cramped circumstances),
the balance of convenience and hardship lay with the wife. This decision was made on the basis that the wife was the primary carer of the parties’ two children and unable to afford appropriate alternate accommodation. This decision was reaffirmed by the Full Court on appeal, and the husband’s application to set aside the order granting the wife exclusive use and occupation of the former matrimonial home, was dismissed.
Ultimately, if parties are not able to agree who is to remain living in the former matrimonial home, the Family Court has a wide discretion to make such order as it considers “proper”. However, the circumstances of each individual case much be taken into consideration.
Finally, in case you were wondering, it has since been reported that Phil Collins was successful in obtaining exclusive use and occupation of his $40 million mansion. He has also sued Ms Cevey for the actions she took in attempt to gain possession of the property.
For advice in relation to exclusive use and occupation of a property and more desirable ways to achieve this, contact a solicitor at Carr & Co.
 Rowe and Rowe (1980) FLC 90-895
 In the Marriage of Sieling (1979) 24 ALR 357
 In the Marriage of Fedele v Fedele (1986) FLC 91-744