Usually on the breakdown of a relationship, one party moves out of the matrimonial home, leaving the other party to continue to reside in the property. But what happens if neither party wants to leave or one party wants to ‘evict’ the other?

Both parties are entitled to remain living in the property unless there is a Domestic Violence Order in place excluding one person from living with the other.

The only other means of excluding one party from the property is by making an application to the Court for an order for sole occupancy of the home.

Such an order may be sought by either party of the marital or de-facto relationship and the Court has wide discretion in determining whether to make such an order. The Court regards the exclusion of a person from their own home to be a serious matter and cases on this issue illustrate they will not decide to do so lightly.

Relevant factors that the Court have considered are:

• The needs of children
• The means and needs of the parties
• Any hardship to either party or to the children
• The conduct of the parties.
• Whether either party has access to alternative accommodation.

A court will not order that a spouse vacate the former matrimonial home merely for the convenience of the other party.

Can separated parties continue to live in the family home?

Couples who have decided to separate can remain living “under the one roof” following separation. If the parties later wish to divorce, they must be able to prove:

• They have separated (that is their relationship has broken down)
• They have lived separately and apart for a continuous period for a less 12 months.

Spouses will be considered to have lived separately and apart under the one roof so long as they can prove that there has been a change in the marriage and have separated.

Issues to be considered are:

• Change in sleeping arrangements (i.e. one person moved into the spare bedroom),
• Reduced shared activities or family outings,
• No longer doing household duties for each other,
• Each person has separate bank accounts and change to how household bills are paid,
• Informed friends and family or other persons that you have separated and
• Any other matters that show the marriage has broken down.

South Geldard Lawyers are able to assist you in your property settlement, make an application for exclusive occupancy if necessary or provide advice if you receive an application to be removed from your property. South Geldard Lawyers have a Family Law team in Rockhampton ready to assist you.

It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.