Loading...

Who Stays in the Home After Separation?

1 May 2018

Separation is a turbulent time and this is never more so the case than when trying to determine if the ongoing occupation of the home can be shared or if one of the spouses should leave. So how can a spouse be forced to leave the home?

A dispute over who will stay in the home may involve an Application for a Domestic Violence Order, which, if successful, usually has the effect of requiring the spouses to stay some distance apart, or it may involve an interim application to the Family Court for what is termed an “Application for Sole Use and Occupation of the Home”.

This article looks at a ‘sole use’ application.

It is not necessary for a spouse seeking an ‘sole use’ order to demonstrate to the court that it is impossible or intolerable for them to continue to co-exist under the one roof (See: Separation Under the One Roof).

A spouse must only satisfy a court that the situation between the parties is such that it would not be reasonable, sensible or practicable to expect them to continue to remain living together.

The relevant considerations for the court include:

  • The means and needs of the parties, including the parties’ income and financial resources, the availability of accommodation and the degree to which the home is an essential part of any business;
  • The needs of any children of the relationship;
  • Hardship to either party or to the children;
  • Conduct of the parties; and
  • Whether there has been any physical assault.

The Family Court has emphasised that the considerations are neither fixed nor exhaustive, and ultimately each case must be decided on its own merits in light of its own particular set of facts and circumstances.

Case Example:

The parties separated after a 27-year relationship. Following separation, they both continued to reside in the former matrimonial home however, the Husband’s actual residence in the home was intermittent as he had travelled overseas on more than two occasions and remained overseas for lengthy periods.

The wife brought an “Application for Sole Use and Occupation” following what she described as incidents of intimidation by the husband including a physical altercation and the fact she found the husband’s coming and going from the household, disruptive. The wife described the situation with the husband in the house as going from “very uncomfortable” to “unbearable”.

The wife also claimed that the husband operated a business from the garage and had people coming and going at all hours and because of this she did not feel safe. The wife provided a pamphlet advertising the husband’s business and the address.

The husband claimed that the wife had changed the locks on the garage so he could not enter, called the police on him, used abusive language to him, threatened to kill him and broke into his room while he was away from the house.

The court was satisfied that the husband’s behaviour was intimidating and that there would be no significant hardship to the husband if he was excluded from the home. The wife was granted exclusive occupancy of the property pending the final property settlement.

Our Advice:

Numerous issues arise at separation and if a mutual and considered approach to who is staying in the home has not occurred, then a dispute can escalate very quickly.

If you are looking at separating we recommend that you seek professional legal advice immediately. Call us on (07) 3221 4300 for a no obligation initial fixed-price appointment.

Protect your rights!

Style Networking Night
2019-04-23T14:44:50+10:00

Client Testimonials

Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
M.R., West End
Your newsletters are great, I appreciate them.
K.B., Carina
I liked my solicitor keeping things as simple as possible.
S.M., Clayfield
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
R.P., Cleveland

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
J.H., Windaroo
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
D.H., Hendra
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill

Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.

R.B., Toowong

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
D.S., Coorparoo
So pleased to have had a good, sound and knowledgeable firm.
C.W., Brookfield

Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.

A.M., Chambers Flat
Your team is professional, warm, friendly and real.
N.R., Crows Nest
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
T.C., Tarragindi
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
J.S., Holland Park
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
S.S., Hamilton

Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.

S.D., Parkinson
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
C.T., Bribie Island

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point

You, guys, provide extraordinary service.

A.O., North Brisbane
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
L.R., Samford

I was always confident that I was getting the very best advice.

T.S., Flinders

Your staff is knowledgeable, professional and very calm.

A.C., Helensvale
Michael is very personable and very good at covering the material and explaining the strategy.
J.O., Hawthorne
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
K.H., Augustine Heights
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
C.W., Brookfield
I really appreciated the happiness of your secretarial staff.
G.C., Clayfield
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
M.T., Stafford

At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!

L.R., Ascot
Your team’s communication with me was exceptional, I knew exactly what was happening.
A.A., Eatons Hill

I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.

S.S., Hamilton

Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.

A.A., Perth

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

A.O., Kedron
I like your friendly service and the ability to speak to my solicitor directly.
R.G., Wishart

Michael Lynch Family Lawyers are easy to deal with, and your systems are good.

D.T., Ferny Grove

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
M.J., Manly

My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.

J.H., Brisbane
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
T.V., Everton Park
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
E.F., Nundah

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane

I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.

C.M., Morningside

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton
Many thanks for your assistance – life is now great – I’m moving on.
J.K., Mansfield

I would like to thank your firm for the support and compassion shown while dealing with my matter.

C.M., Brisbane
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
R.P., Cleveland

Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.

L.K., North Lakes
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
G.C., Southport
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A.C., Morningside

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
C.W., Brookfield

Michael Lynch Family Lawyers know what they are talking about.

R.M., Warwick
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
B.W., Chapel Hill