Following separation if parties are unable to live separated under the one roof and cannot reach agreement for one party to vacate the former matrimonial property, a party can apply to the court to obtain an order for sole use and occupancy of the property (an exclusion order) pending a final property settlement. The onus of establishing a case for exclusive occupation will rest on the party seeking the exclusion order.
It is not necessary for the applicant, when seeking an exclusive occupancy order, to demonstrate to the court that it is impossible or intolerable for him or her to continue to coexist under the one roof. A party 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 a court will include: –
- the means and needs of the parties. This will include each of the parties’ income and financial resources, the presence and availability of alternate 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 Federal Circuit and Family Court of Australia however has emphasised that the above considerations are neither fixed nor exhaustive and that 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 27 years. Following separation they continued to reside in the former matrimonial home. However, the husband’s actual presence in the home was intermittent as he had travelled overseas on more than two occasions and remained overseas for lengthy periods.
The wife filed an application for sole use and occupancy of the property following incidents of intimidation by the husband, a physical altercation and she found the husband’s coming and going to the household was disruptive.
The court was satisfied that the husband’s behaviour was intimidating and that the hardship to the husband would not be great if he was excluded from the home. The wife therefore was awarded exclusive occupancy of the property pending a final property settlement.
What will I need to do?
You will need to prepare an Initiating Application which will set out the orders that you seek, ensuring that the order for sole use and occupancy is an interim order sought. If you are a respondent to an application, you would also be able to seek an interim order for exclusive use of a residence in your response.
If proceedings are on foot, an application in a case is the required form to be filed.
The supporting affidavit will need to set out your evidence as to why the exclusive occupation order is necessary. It is important to address each of the considerations above to the extent that they apply to your matter.
