Usually, when the parties to a marriage or de facto relationship separate, one of them moves out of the family home, leaving the other party occupying it. Sometimes, however, neither party moves out of the home and the two parties stay living in the same residence although they are separated.
Living separated, but under the same roof, is difficult for both parties. There are some parts of the house that they have to share, such as the kitchen and the laundry. They have to negotiate their way around each other and they have to deal with each other in relation to the use of common areas and jointly owned belongings, such as kitchen appliances, the television, the washing machine and so on.
It is not unusual for one of the parties to a relationship that has broken down, but the couple are still living in the same house, to seek a lawyer’s assistance to gaining sole occupancy of the residence.
There are essentially two ways to get sole occupancy of a residence after the relationship has broken down, but the parties are still sharing that residence. One way is quick and confrontational and the other way is slow and, at times, uncertain.
The quick, confrontational way is for one party to change the locks (or more correctly, have them changed) while the other party is away from the home. This almost invariably involves a very ugly scene when the other party arrives home to find themselves locked out of the home. It also leaves the lock-changing party vulnerable to the same being done to them the next time they are away from the home. The only advantage to this approach is that it is quick and less costly than going about seeking sole occupancy the “proper” way.
The slow approach is for the party who is seeking sole occupancy filing an application in court seeking an order for sole occupancy. If there are already proceedings underway for property settlement, then what has to be filed is an Application in a Proceeding seeking the order. If no proceedings have been commenced, then what needs to be filed is an Initiating Application seeking final orders by way of property settlement and interim orders for exclusive occupancy.
If there are no children of the marriage or relationship, it can be difficult to get an order for sole occupancy. Courts are reluctant to make one party vacate a property that they partly own just because the living circumstances in the home are a bit tense. The court will want some evidence that living separated under the one roof is having some measurable impact on the party seeking sole occupancy. That evidence could come in the form of a report from a psychologist who says that sharing the residence is affecting the mental health of their patient.
It is important too, to think about what is being sought as final orders by way of property settlement. If only one party is seeking to retain the property, the court may be reluctant to require that party to vacate the property in the meantime.
If there are children of the relationship, a court will be less likely to be content to leave the two parties and the children sharing a residence with all the tension and hostility that may involve. The party that will have the majority care of the children if that is known, may have the better chance of retaining sole residence of the property. Sometimes, where both parties work full time, so that neither of them can offer more time with the children than the other, the battle of occupancy of the house can include contested proceedings about with which parent the children will reside and the outcome can be very uncertain.
When considering contested occupancy proceedings, the court will want to know if either party has family living in the vicinity with whom they can live. The court will also want to know about the financial circumstances of each party, particularly about their capacity to solely shoulder the burden of mortgage payments or rent for the property.
If there are more serious allegations, such as assertions about family violence, or heavy drinking by one party in the home, the court will take those into account in making a decision about sole occupancy. It must be remembered though that in interim proceedings, a court is unable to make findings on disputed allegations where it is simply the word of one party against the other.
Applications for sole occupancy can involve much more than just the issue of who gets to live in the house. For that reason, if you are in a situation involving separation under the one roof and you want to get sole occupancy of the family home, it will be well worth your while to consider a specialist family lawyer.
Written by
Stephen Rugendyke
Special Counsel
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