What can I do if my ex refuses to leave our house after separation or before divorce?

When couples separate and are likely to divorce, one of them usually leaves the home and other remains there until property disputes are resolved or orders are made by the Court.  So for some couples, where one person announces they are separating but then do not leave the home, the question is who is going to leave the family home and who is going to stay.  When separating couples end up in the Family Courts, it is usually because one person refuses to leave the family home.

Counsel Family Lawyers can assist in negotiating a sensible approach to interim living arrangements and provide you and your ex with a roadmap to settlement to try and avoid Court.  In other words, we can suggest an interim solution focussed on the needs of your children which provides for interim living arrangements, a commitment to mediation with a view to helping you and your ex resolve all matters.

In circumstances where you and your ex have little co-operation, and there is a feeling that living together is intolerable and where there is open hostility and discomfort which is causing flow on effects on your day to day ability to cope, Counsel Family Lawyers will make all arrangements and ask the Court for a sole use and occupation order to enable you to live in the house on your own.

Section 114 of the Family Law Act (1975) (the Act) provides the Court with the power to Order an injunction “as it considers proper with respect to the use or occupancy of a specified residence of the parties to the relationship.”

The Court has made it clear, that in matters of this nature, it does not make orders for injunctions without serious consideration for the personal circumstances of each party.  Essentially, by granting an injunction, the Court is limiting an individual’s right to their own property. In the matter of Sieling v Sieling (1979) FLC 90-627 the Court indicated the serious nature of an injunction which removes a party from their home.

[The Court] will not lightly interfere with the rights of an owner of a property on the basis of a vague or uncertain claim.  There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.”

Counsel Family Lawyers can assist by seeking a Court order, for you to have sole occupancy of the home if you are feeling harassed, experiencing family violence, or hardship and you feel it is not “reasonable, sensible or practicable” for you to remain in the same home as your former partner, contact our office for further advice on your rights and obligations in relation to the occupancy of the home.  We will also explore with you any other options available to you and ensure the most prudent course of action is taken.

If you have already obtained Family Violence orders and are unsure of your options in relation to seeking orders from the Family Court, we can provide you with advice on those options.

If your former partner refuses to vacate the home or wish to discuss your options prior to separation and your matter generally, you should contact our office to make an appointment on 9320 3900 or email [email protected].

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Counsel Family Lawyers for legal advice.  The contents of this blog are relevant as at 30 August 2017.  We recommend you obtain specific advice relevant to you and your family’s situation.


By Sarah Damon and Caroline Counsel


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