When a relationship has irretrievably broken down, it is unlikely that you will want to remain living under the same roof. So can you change the locks after separation to keep the other person out? In simple terms, the answer is “yes.”
There is almost nothing stopping you from switching those locks after separation in the absence of a court order that states otherwise. However, the answer may change depending on who legally owns the property.
|NOTE: What proof is required to demonstrate irretrievable breakdown?
The Family Law Act 1975 (Cth) (the Act) states that irretrievable breakdown of a marriage will have occurred if:
Can I Change The Locks After Separation If The Property Is Registered Under Both Of Our Names?
If you and your former partner are co-owners of the property, you both have the right to change the locks after separation by law.
Before you go ahead, though, it is vital to keep in mind that your spouse is entitled to regain access to the property without your consent due to your equal proprietary rights.
Applications for the exclusive use of the family home may be made in the Family Court. In these circumstances, the court will consider several factors, including:
- Whether the party being excluded has the financial capacity to lease another property;
- If there are children, how their arrangements between the couple will be affected;
- Whether there exists a risk of violence; and
- Whether both parties can live under the same roof with minimal contact. This will be based on the physical layout of the property.
What If The Property Is Owned By One Party?
Typically, if the property is registered solely in your name, you will have rights over the property. This includes the right to live in the property and change the locks if you wish. However, it is important to note that this will only be the case if there is no court order stating otherwise.
Although you may be legally entitled to change the locks as the property owner, it is good practice to notify your former partner, especially if there are children involved or the other party wishes to collect their belongings.
Can I Change The Locks If The Property Is Leased?
Another common question is whether or not a party can change the locks on a rental property they once shared with their former spouse. The basic answer is “no.” This is because neither of you is the legal owner of the property.
If you wish to change the locks on a rental property, you must obtain consent from the landlord before doing so. In this case, you may be required to provide the landlord with a spare key, as well as any other tenant named on the lease, provided a court order hasn’t excluded them.
What If There Are Concerns For My Safety?
If you want to change the locks due to your safety concerns, the best thing to do is to seek legal advice immediately.
You may also wish to contact the police for further information. In this situation, seeking an Apprehended Violence Order (AVO) may be suitable to ensure that your former partner cannot attend or come within a certain distance of the property.
Should You Change The Locks After Separation?
Although there are several benefits to changing the locks including, personal security, and privacy, it may not be the most ideal method of getting a former spouse to move out, particularly if they are caught off-guard and emotions are running high at the time.
Therefore, whether or not you have the right to do so, there are a number of important factors to consider before making a decision. These include:
- Whether or not you are concerned about your safety.
- Whether your former spouse has already moved out or if you’re trying to lock them out.
- Whether the other party requires access to collect their belongings.
- Whether the other party has organised somewhere else to live.
- Whether you have discussed arrangements for mortgage/rental payments.
- Whether changing the locks will cause frustration where children are involved.
Hire an Experienced and Reliable Family Lawyer Today
Whether you can change the locks usually depends on individual circumstances. So if you’re looking at separation or you’re currently going through a separation, you need an experienced family law solicitor.
With years of experience under our belt, we pride ourselves on making each client’s experience as positive as possible.
Contact us today for assistance with your legal matter.
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