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The Family Home and Separation: Can I make my ex leave?

May 17, 2023

Carr & Co

By Camille Eckhaus, Senior Associate

It’s an obvious thing to say, but separation is hard.  It’s even harder, though, when you and your partner are stuck in the same house. Sometimes this happens because neither of you have anywhere else to go or you can’t actually afford to live independently, but sometimes one person just refuses to leave.

If that person is you, keep in mind that it may not necessarily impact the outcome of your property settlement if you go. You can still seek the house in your final settlement and your entitlement does not extinguish simply because you no longer live there.  On the other hand, if you leave, you won’t be able to control what happens in your home.  For instance, you won’t be able to make sure that it’s properly maintained, that somebody is mowing the lawn or cleaning the pool.

There can also be difficulties about who pays the mortgage, let alone the other expenses like the insurance and rates. After all, if you’re not living in the home, not only are you not receiving any of the benefits of the home, but you also have to meet the costs of living somewhere else. There may not be enough money to go around once you’ve met all of those additional costs, but equally the person who stays in the house may not be able to afford the mortgage alone. Try explaining that to the bank, though, when they want to know why the mortgage isn’t being paid.

There can be, therefore, good reasons to seek to stay in the home and have the other person leave. But how do you go about this if the other person won’t agree?

Family Court powers

The answer is that the Family Court has the power to make any order it considers proper in relation to the use or occupancy of the former matrimonial home. This means that you can make an application to the Family Court to have the other person leave.

How the Court goes about deciding to make this order has been described by the Full Court as being ‘surprisingly vague’[1], which is hardly helpful.  However, cases have suggested there are two steps that the Court will consider in deciding whether to make an order that one party must leave the home. These steps are:

  1. Firstly, consideration of whether the circumstances of the parties are such that an order is necessary; and
  2. secondly, and in the event the answer to the first stage is in the affirmative, which party should have the right of exclusive occupation.[2]

The first step has been described as being satisfied when the Court considers that the living situation in the home is such that it would not be ‘reasonable or sensible or practicable[3] to expect two people to continue to live together.

Since the power is a discretionary one, the Court will not exercise it lightly. It will take more than it simply being uncomfortable for you and your partner to continue to live there. The Court is going to need a good reason why they should interfere with one person’s right to live in their own home.

For instance, if one party has traditionally been a stay at home parent with no income, the hardship to them in being required to leave is greater than the hardship to the other person, who has an earning capacity and an ability to pay for alternative accommodation.

If the Court is satisfied that one person should leave, they then need to decide who should go. What this means is that the Court will look at all the circumstances of the case, including:

  1. Who is in the better financial position? Does one party have funds to enable them to relocate?
  2. Will the order impact upon one person’s capacity to continue their employment, such as placing them too far away from work?
  3. Will the order impact upon one person’s capacity to continue their role as primary caregiver for the children? For instance, will a move place them outside of the school zone in which the children are currently enrolled?
  4. What is in the best interests of the children?
  5. Do either party have alternate accommodation available?

This is not an exhaustive list, but provides a guide for the type of matters the Court will need to consider when faced with an application for one person to leave the former matrimonial home.

Are you in the process of separation and need more advice about getting your former partner to leave the home? Contact Carr & Co Divorce and Family Lawyers to arrange an appointment on ph 9322 8000 or via email at contactus@carrco.com.au


[1] S & S [2002] FamCA 59 at [32]

[2] Wilde & Foster [2018] FamCA 502

[3] S & S [2002] FamCA 59