A separation lawyer is often faced with the dilemma of who is able to remain in the matrimonial home following their client’s separation. How and where a client can secure suitable accommodation in circumstances where the other party refuses to leave the former matrimonial home is an issue not uncommon to a separation lawyer.
The situation is made even more challenging when finances are not available to a party to obtain alternative accommodation for himself or herself and/or the children. Obtaining exclusive occupation of the former matrimonial home and effectively evicting your former spouse is a difficult task to achieve.
How can a separation lawyer help?
There is an order that your separation lawyer may be able to seek for sole use and exclusive occupation of your former matrimonial home. This type of order is injunctive and made pursuant to s 114(1)(f) of the Family Law Act 1975. The order has an effect against your former partner to restrain them from entering the home. For the Court to make such an order it must be satisfied that, inter alia, it would be “proper” to decide on the former.
What does the Court mean by “proper”?
In determining whether the Court considers it “proper” to grant an order for sole use and exclusive occupancy, the following factors are taken into account:
- the means and the needs of the parties;
- the needs of any children;
- hardship to either party or children; and
- if relevant, conduct justifying one party being expelled from the home.
It is important to note that inconvenience of a party is not a factor that is taken into account.
The Court has stated that it may be appropriate to make such an order where the situation between the parties is… “that it would not be reasonable or sensible or practicable to expect them to continue to remain in the home together”.
The onus of proof lies with the applicant to satisfy the Court on the balance of probabilities that such an order should be made.
Ultimately each case will be determined on its own facts and the Court has a degree of discretion in granting such an order.
