Applications for Exclusive Occupation

After the breakdown of a relationship, it is often the case that both spouses continue to reside in the matrimonial home, until such time as they have reached agreement as to a property settlement. Whilst this may, be both economically viable and convenient, in some cases it may not always be practical or possible where the relationship between the parties is acrimonious, and the parties are fighting to have sole occupancy of the home.

Locking a spouse out from entry to the matrimonial home

Unless there is a Court order to the contrary, both parties to a marriage are entitled to live in the former matrimonial home following separation.

Where there is a dispute as to who should continue to live in the matrimonial home, a common scenario, is for the first party to change the locks to the home, effectively locking the other party out.

This approach is usually not recommend as more often than not, taking such action only inflames the situation, can be quite stressful for both parties, and often leads to urgent Court proceedings or the involvement of police.

If the party who has been locked out, holds legal title to the property, then that party is entitled to regain entry and continue to live there (unless there is a Court order to the contrary). Therefore even if one party changes the locks, the other party is entitled to call a locksmith and gain access.

If, on the other hand, the title to the property is in the name of one party only, and that party locks the other party out, then in that case, the other party is not legally entitled to call a locksmith to re-enter the property. However, that party may apply to the Court for an order to reside in the matrimonial home under the Family Law Act 1975.

Applications for Exclusive Occupation

If one party seeks sole occupation of the matrimonial home, and wants the other party to vacate, that party must file an Application for Exclusive Occupation with the Court.

The Court has a wide discretion in deciding such cases. The Court will take the following matters into consideration:

(a) The nature of the relationship between the parties.

(b) The respective financial position of each party and whether it would be practical and financially possible for either party to obtain alternate accommodation.

(c) Whether either party has been subjected to violence or abuse at the hands of the other.

(d) Whether there is an investment property, or other property owned by the parties, which one party may temporarily move into.

(e) The question of convenience or hardship.

(f) If there are any children, their interests.

(g) Whether the application is necessary and reasonable.

The above list is by no means exhaustive and, overall, the Court will make whatever order it considers to be fair and just in the circumstances of the case.

In the above circumstances, it is advisable for each party to seek legal advice as to their legal entitlements under the Family Law Act 1975 and the best way to proceed.

Edwards Family Lawyers have extensive experience in Applications for Exclusive Occupation and have had success in gaining sole occupancy of the home for their clients. Should you have any enquiries in relation to such matters, please contact us for assistance.

Teresa Dodaro

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