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Exclusive Occupation – Can I stay?

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By James Halliday and James Marmin

The breakdown of a relationship can be an immensely stressful time for all the parties involved. One of the main stressors through this process can be the former matrimonial home and namely, who is to continue residing there.
Although, both parties can continue to live under the same roof while their property settlement is finalised, it is not always practicable, financially possible or convenient for the parties to do so. Therefore, disputes can arise as to who is to remain in the house and who should leave. Therefore, parties may choose to attempt to apply to the court for assistance to resolve this dispute.

Can the Court assist?

In a situation where one party would like to exclude the other party from the matrimonial house, they may wish to file an application seeking an Exclusive Occupancy Order with the Court. This is an interim order which will provide temporary relief to the applicant.

The Court has power to grant an injunction relating to the use and occupancy of the former matrimonial home.
An exclusive occupation order made by the court would be granted on an interim basis and would provide the parties with adequate direction until such time that the parties can resolve their property settlement on a final basis. It is important to remember that this interim order is not a determining factor in the division of the property pool, nor does it have any impact on the ownership of the property. Generally, the final settlement will deal with the occupancy of the matrimonial home on a final basis and will be enforced by the Court through consent orders, a binding financial agreement or determination by the Court in a final hearing.

Court’s Considerations

In exercising the above power, in the recent decision of Dickinson & Packam [2021] FamCA 298, the Court formed the opinion that an application for orders of exclusive occupation should be considered in two stages

  1. Whether the circumstances of the parties are such that an order for exclusive occupation is necessary; and
  2. Which party should have the right of exclusive occupation.

The Court’s interpretation of ‘necessary’ has proven to set a high standard to reach for a party seeking an exclusive occupation order. The Court has stated that since this injunction is prohibiting a person from living in their own home, it should only be granted in restricted and exceptional circumstances. There are various factors which the court will consider when determining how necessary the exclusive occupation order is.

These can include:

  • The best interests of any children of the relationship;
  • Any inconvenience or hardship that a party will endure as a result of the order;
  • The nature and history of the relationship between the parties;
  • The conduct of the parties;
  • The financial position of each party and their ability to obtain alternate accommodation;
  • Any risk of violence or harm to either party or a child of either party.

Although traditionally the conduct of the parties was the primary and ‘essential’ matter to be taken into account, it appears that the modern approach is for the Court to view the conduct of the parties as only one of many considerations. It is important to note that the party who is the registered owner of the property is not always a relevant consideration for the Court. Generally, the court will balance all the relevant factors together when determining if necessary to grant exclusive occupation.

What next?

The Court has made it clear that any ouster order resulting in exclusive occupation is very serious and should only be made in cases of real necessity. An application for exclusive occupation will need to show that it would be unreasonable for both parties to remain in the former matrimonial home together.

Although this can be a high threshold to meet, if you find yourself in a situation where it is necessary for you to remain in the matrimonial home and ensure that the other party is no longer present, you may have an option to pursue an order for exclusive occupation. There may be a variety of reasons why this order is necessary for you either based on the above factors listed, or a range of others.

However, if there is domestic violence occurring in your home and you believe you or a member of your family is at risk, you should contact the police immediately rather than waiting to apply for this order. Domestic violence can include physical, sexual, emotional or financial abuse, or threats of abuse or violence either aimed at you or your children.

We can help

If you believe that you are in a situation which may require an application for exclusive occupation, your lawyer can help advise you on what preparation and planning you can do to prepare your application to have the highest prospects of success. Our experienced Family Law team at McCarthy Durie Lawyers are able to provide you with this advice and assist you to navigate through all your Family Law matters both in and out of court. If you require assistance with this, you can contact McCarthy Durie lawyers to assist you today.

Click through to view, or send an enquiry to our Famly Law Team, James Halliday, Jasmine Evans and James Marmin.

We have assembled a highly experienced, capable team of legal practitioners, committed to delivering you expertise across all legal services. Find your local office: