“Should I Stay or Should I Go”, coincidentally a song played by a band called The Clash, is a question many parties ask when they separate, and both often think they are entitled to remain living in the home whilst the other finds alternate accommodation.
Often one party decides to leave the matrimonial home when an altercation occurs, and the Police are involved. Whilst the Police are not able to forcibly remove a party when the house is held in joint names (unless of course there are already family violence Orders in place), they do highly recommend that one party leaves in order to ensure that no future incidents occur. This is simply due to the fact that there is often volatile atmosphere created following a new separation, and the Police are the first point of call.
Should the issue remain and there is no agreement as to who is to remain in the home (and usually incur the expenses associated with living in the property such as mortgage repayments), the Court may be asked to decide by way of an Application to the Court.
The Court has the power under Section 114 to:-
- grant an injunction restraining a party from entering or remaining at the matrimonial home (or the premises in which the other party resides, considering that many people are either renting or perhaps in this day and age, due to the expense of owning a home or simply for convenience, continue to live with their parents); or
- grant an injunction relation to the use or occupancy of the matrimonial home (otherwise known as ‘exclusive occupancy of the matrimonial home’).
When deciding whether to grant a party exclusive use or occupancy of the matrimonial home, the Court may make such an order “as it considers proper” with respect to the matter to which the proceedings relate.
The Court will look at the following factors when deciding to give a spouse exclusive use or occupation of the home:-
- the means and needs of the parties (for example, the financial situation of each party)
- the needs of the children
- hardship to either party or to the children
- the conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party (where relevant, for example where one party is engaging in intimidating or manipulative behaviour of there is family violence – be aware however, that this conduct must be serious and not merely annoying or inconvenient).
The above is by no means a restrictive list and are guidelines only.
An Application for sole occupancy of the home is made on an interim basis (that is, during Court proceedings) and the onus of proving entitlement to the home is on the applicant which is done via an Affidavit. The Court will look at the evidence the Applicant seeks to rely upon when exercising its discretion.
If you think an order for sole occupancy may be appropriate for you (or a friend) in your circumstances, contact our family law experts at Freedman & Gopalan Solicitors by calling 02 8917 8700.