Can I Have Exclusive Occupation of the Former Matrimonial Home?

April 13th, 2017

The issue

Suddenly you’re separated.  You may have assumed that your former partner would leave the former matrimonial home (“FMH”) but he is refusing to do so or insisting that you move out.  If the FMH is held in your former partner’s name, you may even be accused of trespassing by remaining there.

What redress is available from the Court?

A Court may be willing to make interim orders that:

  • you have exclusive use and occupation of the FMH;
  • your former partner is restrained from entering, approaching or doing any act which interferes with your use and occupation of the FMH;
  • your former partner leave the property in good condition and order.
Power under the Family Law Act 1975 (Cth) (“FLA”)

Section 114 of the FLA gives the Court power to “make such order or grant such injunctions as it considers proper” including an injunction restraining a party to the marriage from entering or remaining in the matrimonial home  and an injunction relating to the use or occupancy of the matrimonial home.

What must I prove in order to obtain an order for exclusive use and occupation?

There is no fixed list of criteria that must be established. Each case is determined on its facts. However, case law has set down that matters to be considered include:

  • the means and needs of the parties;
  • the needs of the children;
  • hardship to either party or to the children;
  • where relevant, conduct of one party which may justify the other party in leaving the FMH or in asking for the expulsion from the FMH of the first party.

Although hardship may be involved for the party required to vacate and the party seeking the order for sole use and occupation of the FMH may have financial capacity to rent alternative accommodation, a Court may still be willing to make an order pending a final property settlement. This may be particularly so where:

  • children are in fear for their safety and the safety of the party seeking the order if they continue to live with the party who is being required to vacate the FMH;
  • the party seeking the order must arrange for the children’s accommodation;
  • the party seeking the order has been conducting a business from the FMH; and
  • it is largely the conduct of the party being required to vacate the FMH that has caused the other party and the children to vacate that home.

In Saveree & Elenton [2014] FamCA 38, the Court in making an interim order that included requiring the Husband to vacate the FMH was concerned for the children’s need for stability and particularly for a child embarking upon Year 12 of her education.

By Lezah Gildea-Marega

If you need family law advice please feel free to contact Bloxham Legal for a free initial consultation on either 9221 5815 or