Someone has to go!

Obtaining an Exclusive Occupancy Order to the matrimonial home

By Anya Aidmananya bw 2 cropped

Sometimes, when a marriage breaks down neither party is prepared to leave the matrimonial home immediately after separation. Parties linger in cohabitation in circumstances which, sometimes, become intolerable. There are many reasons why such a situation may arise. A party may refuse to leave until outstanding children and or property matters are resolved. Maybe one party does not accept the marriage breakdown.

Similar circumstances sometime arise in relation to parties who have been in a de facto relationship.

In such cases, where there is also domestic violence, the victim may seek domestic violence orders including orders for the aggressor to be required to move out and to stay away.

As an alternative, even in cases where there is no domestic violence, a party may seek an injunction to obtain interim orders for the sole occupation of the matrimonial home (section 114(f) of the Family Law Act)

An exclusive occupation order would only be granted on an interim basis and would normally be intended to be in place until such time as parties resolve on a final basis the issues in dispute between them.

There are various factors that a court will take into account when determining whether it is appropriate to make an order for exclusive occupation, including: 

  • Best interests of the child generally;
  • Whether there are practical alternatives to providing such an occupancy order;
  • Hardship to either party or to the children;
  • Conduct of parties in the proceedings;
  • The respective means and needs of the parties – for example, one party might have a significantly greater financial capacity to seek alternate accommodation.
  • Violence, harm or risk to either party or a child of the party;

When considering an application for sole occupation of the home, it would normally be irrelevant to the Court whether the property in question is registered in the name of the applicant or jointly or indeed in the sole name of the party who may be required to move out from the home. In the case of Page v Page, the Court explained that when dealing with an Exclusive Occupancy application:

“The Court will consider with care the accommodation available to both spouses, and the hardship to which each will be exposed if an order is granted or refused, and then consider whether it is really sensible to expect a wife and child to endure the pressures which the continued presence of the other spouse will face.  Obviously, inconvenience is not enough.  Equally obvious, the Court would be alive to the risk that the spouse may be using the instrument of an injunction as a tactical weapon in the matrimonial conflict.”

Historically, the courts have set quite a high bar for an applicant for an order for exclusive possession to demonstrate, in effect, that it was impossible or intolerable for him or her to continue to co-occupy the property with the former spouse.  Though more contemporary cases take a broader view of what can be considered unreasonable in such a case.

An applicant for an order for exclusive possession needs to demonstrate that it is unreasonable to expect, for various reasons, the parties to remain in the matrimonial property together.  It would not be sufficient to merely demonstrate that the balance of convenience weighs towards the one party being restrained from remaining in the matrimonial property.

If you are considering applying for an Exclusive Occupation Order against your former spouse, and wish to discuss this issue further, you can contact Anya Aidman or Carlos Turini in our Family Law Team: 

e: aaidman@elringtons.com.au | p: 02 6206 1300

e: cturini@elringtons.com.au| p: 02 6206 1300