How to remove your partner from the family home: Exclusive occupation applications

When a relationship breaks down, it is sometimes not reasonable, safe or practical for both parties to remain living in the family home. If agreement cannot be reached about who should leave, a party may apply to the Federal Circuit and Family Court of Australia for an order granting them exclusive occupation of the home and requiring the other party to vacate.

This is a serious step for the Court to take and as such, the Court approaches these applications with caution and considers whether it is proper, reasonable and necessary in the circumstances to exclude one party.

What is an exclusive occupancy order?

An exclusive occupation order is a form of injunction. It may restrain one party from entering, remaining in, or occupying the former matrimonial or family home, and may give the other party sole use and occupation of that property, at least on an interim basis. The order does not finally determine ownership of the home. Rather, it regulates possession and occupation pending further order or final resolution.

For married couples, the Court’s power is found in Section 114(1)(f) of the Family Law Act 1975 (Cth). That section permits the Court, in proceedings arising out of a marriage, to grant an injunction relating to the use or occupancy of the matrimonial home.

For de facto couples, the relevant power is found in s 114(2A)(a) of the Act, which permits injunctive relief in proceedings between parties to a de facto relationship. This may include orders concerning the occupation of the family home.

In both cases, the power is discretionary. The Court must be satisfied that it is proper to make the order in the circumstances.

The test for an exclusive occupancy order

The applicant does not need to prove that continued cohabitation is impossible, intolerable, or caused by serious misconduct.

In Davis [1982] FamCA 72, the Court cited the unreported judgment of Price and said at paragraph 10:

“…it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together.”

In Kimberley & Kimberley [2011] FamCA 406, the Court helpfully outlined some factors to be considered in such an application but prefaced this by saying, “Orders giving exclusive use or occupation of a matrimonial home are only made with caution. It is a serious matter to turn a spouse out of their home”.

The factors to be considered are:

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, the conduct of the parties.

The Court also noted that these factors are not exhaustive. The “balance of convenience” is important. This includes whether one party can be adequately housed elsewhere and whether there are financial resources to allow separate accommodation.

Ownership of the property is important

The legal ownership of the home can be significant, particularly at an interim stage.

In Sarto & Sarto [2022] FedCFamC1A 16, the husband sought exclusive occupation of a home owned solely by the wife. The wife had left at separation but wanted to return. The Appeal Court held that the husband had not established a sufficient basis to prevent the wife, as the sole legal owner, from exercising her right to possession.

At paragraph 24, the Court said:

“It is reasonably clear the magistrate wrongly assumed the husband already enjoyed some form of inchoate interest in the property simply because it was acquired during the marriage, even though it was owned exclusively by the wife. She was (and remains) entitled to exclusive possession of the property, since the husband failed to persuade the magistrate of his entitlement to an interim injunction temporarily curtailing the wife’s proprietary rights.”

Sarto confirms that a party cannot assume a present right to occupy a property merely because it was acquired during the relationship. A non-owner may later seek property settlement orders, but at an interim stage, they must still justify any order interfering with the legal owner’s possessory rights.

Evidence needed

A party seeking exclusive occupation should provide clear affidavit evidence addressing:

• who owns or leases the property;
• who currently lives there;
• the circumstances of separation;
• why continued co-occupation is not reasonable, sensible or practicable;
• the impact on any children;
• each party’s financial position;
• available alternative accommodation;
• any family violence, intimidation or serious conflict;
• proposed arrangements for collecting belongings and paying outgoings.

General discomfort or preference will usually not be enough. The evidence should explain why exclusion is necessary and why the proposed order is fair in the circumstances.

Legal advice from a specialist in family law is essential in these applications. If you are in the midst of a family law matter or require assistance or advice regarding exclusive occupancy application, please contact our firm on (02) 4944 3322 to make an appointment with our Accredited Specialist in Family Law, Hayden Carr.

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