Can I make my husband/wife leave the family home now that we’re separated?

This is a very common question asked by parties following a separation.  It can be incredibly unpleasant to have to continue to live with an ex-partner until financial settlement is achieved.  Unfortunately, it is also incredibly difficult to force an ex-partner to leave the family home.

The court is of the opinion that it is a very serious step to order someone to leave their home and the circumstances of the case must be very compelling to convince the court to do so.  Obviously the existence of family violence or a risk of harm to children would be compelling justifications however where neither of these two factors exist it is a very difficult case to make.

One recent case where it was successfully argued that the wife (in this case) should be ordered to leave the home was the case of Tailor [2019] FamCA 383 (2 July 2019).  This case involved a very elderly couple and the husband successfully argued that the wife’s presence and harassment of him in his frail state was significantly harming his health.  One factor which I do not believe should be overlooked was that the wife had alternative accommodation available to her and the husband had agreed to continue to provide financial support to her.

How Can We Help?

If you have questions about a separation, please contact us today on  4952 3901 or email to schedule one of our ‘Smart Start’ fixed fee appointments.

By Samantha Miller

Senior Associate Solicitor