Can I Stay in the Family Home After Separation?

When a relationship is over one of the hardest decisions will be who leaves.

Who Gets to Stay in the House After Separation?

After separation, both parties generally have the right to remain in the family home regardless of whose name is on the title or lease. One party can only be forced to leave if they agree to do so, a family violence order is made, or the Court grants an Exclusive Occupancy Order.

What Happens if I Move Out?

If you have decided to move out, you should be aware that leaving the property it will not affect your entitlement to a share of the property. Any rights you have built up during the relationship will remain even if you leave.

If you fear violence, you should seek advice immediately and take steps to ensure your immediate safety.

What is the Exclusive Occupancy Order?

Sometimes one party can obtain a sole occupancy order requiring the other party to leave the home. The Court can make what is called an Exclusive Occupancy Order of the house for either spouse. That means you can live in the house, without your spouse living there until the property has been divided. Usually when the Court makes an order of this kind, the responsibility to ensure the upkeep and presentation of the house will be on the remaining party. In circumstances where you are renting you may also need to consider if you can afford the rent.

When the Court makes this kind of order, it will look at the needs and resources of the individual parties and the children. This will usually only be made in exceptional situations where there is family violence or threats are being made by one spouse against the other, especially if the children are affected, or the house has been adjusted because somebody has a disability.

If you find yourself in circumstances such as these it would be best to get individual tailored advice, especially in circumstances where you can no longer meet your financial obligations.