Family lawyers are commonly asked, in the event of a relationship breakdown, which party has the right to remain in the former matrimonial (or de facto) home while finalisation of property matters is pending. The simple answer is that there is no simple answer.
While some manage to resolve the impasse amicably and remain separated under the one roof, others can simply not remain in the same property.
For those who cannot live under the one roof, the Family Courts have the power pursuant to the Family Law Act 1975 (‘the Act’) to order that one party has sole/exclusive use and occupation of the home.
The Courts power is conferred upon the parties via injunctive relief. This means that at the Court’s discretion, one party can be restrained from entering or remaining in the matrimonial (or de facto) or the premises in which the other party to the relationship resides or entering or remaining in a specified area where the home is situated.
In respect of marriages this is dealt with under section 114(1) of the Act. If the relationship is a de facto financial cause, section 114(2A) prescribes powers to the Court to make a sole occupancy order.
The test that the Court will apply in deciding whether to make these orders is whether, in the circumstance, it is proper to do so. The Courts do not make exclusive occupancy orders lightly as these orders effectively exclude one party to the relationship from their home.
As a result, when deciding to make such an order, the Courts must take into consideration:
1. the means and needs of the parties,
2. the needs of the children,
3. hardship to either party or to the children, and
4. where relevant, conduct of one party which may justify the other party in leaving the home or which may justify a party asking for the expulsion from the home of the other party.
These criteria were first established in the case of Davis & Davis (1976) FLC 90-062 and still remain as the benchmark on which decisions are based.