Divorced spouses continue to seek an exclusive occupancy order for their marital house. The spouses must achieving a property settlement before doing so. This may be both practical and convenient. However, it may not always be possible when the parties’ relationship is rocky.
This results in a battle for an exclusive occupancy order for the marital home. This order excludes a person from a marital home. An exclusive occupancy order is not simply given because the parties don’t get along. It’s also not given even if they are uncomfortable living together during the separation or divorce process.
Specific conditions require an exclusive occupancy order. For example, if the nonmovant spouse has willingly established an alternate residence. This can also be done if the nonmovant spouse knows that returning to the marital residence would cause domestic conflict. This article will explain an exclusive occupancy order in more detail.
What Family Law Says About An Exclusive Occupancy Order
An exclusive occupancy order permits the Court to determine who should reside in a marital home. According to Section 114 of the Family Law Act (1975), the court can make an injunction order in relation to the use or occupancy of the matrimonial home. Moreover, these injunctions can also restrict the other individual from a specific region around the house.
According to the Family Law Act, a court has the authority to issue an exclusive occupancy order regarding:
- The use or occupation of the marital residence (for a married couple); and
- The parties’ use or occupation of a specific residence. This includes an injunction prohibiting one of them from entering or residing in that residence or the region in which it is located (for a de facto couple).
Court Considerations For An Exclusive Occupancy Order
In a family law case, obtaining an exclusive occupancy order is difficult. Don’t just use this order as a “tactical weapon” for any ongoing marital quarrel. Courts will only award an exclusive occupancy order if it is necessary to protect people or property.
To determine whether an exclusive occupation order is “appropriate,” a judge must consider the following factors like:
- The parties’ resources and needs;
- The children’s necessities;
- Difficulties (rather than just inconvenience) for either party or children; and
- If applicable, behaviour that justifies one party’s expulsion from the home.
A conflict gives a negative impact on one party or the children. This will often be enough to tip the balance in favour of the applicant for an exclusive occupancy order. Examples of “high conflict” cases are regular abuse, neglect, or family violence. These cases can and may often affect children.
The Court has made it plain that any eviction that results in exclusive occupancy order. Only use this order under extreme and serious circumstances. An application for an exclusive occupancy order must demonstrate that staying in the former marital residence with both parties would be unreasonable.
Exclusive Occupancy Order: Related Case
The case of Merritt & Phillips (2017) involves an exclusive occupancy order. In this case, the wife claimed that the husband had subjected the children to domestic violence and abuse. As a result, the wife was forced to leave the marital home. with the children and seek alternate housing.
She also advanced that her weekly duties would be reduced in caring for the children. That is if she could return to the marital home. For example, one of her children’s school was within walking distance of the marital house. The husband, on the other hand, had other options for living arrangements.
In the father’s defense, the allegations of family violence were untrue. The father also needed to remain home as he claimed that his health is deteriorating. In that case, the wife requested an interim property injunction. The sole use and occupation of the marital house until final orders were issued in the case.
The Court considered the following when evaluating whether to accept the wife’s request for an exclusive occupancy order:
- “In all likelihood,” the young children had recognised the marital home as “their home.”
- The financial evidence supported the judgement that if the wife occupied the marital home with the children (until a final order is made), she would be able to satisfy her mortgage and outgoings commitments; and
- The possible alternate accommodation of the marital house shed some light in the situation. This proved the husband’s behaviour towards the mother and children to be problematic.
The court then made orders for the husband to vacate the former marital home. The wife received an exclusive occupancy order. In addition, the father can’t access items from the marital home. He was also restrained from entering the marital home without the wife’s written consent.
What If A Spouse Is “Locked” Out Of The Marital Home?
Both parties to a marriage are entitled to live in the former marital home following separation. This is unless a court order states otherwise. There can be disagreements about who should stay in the marital house. A common scenario is for the spouse to change the locks. This results in shutting the other out.
This strategy is usually not recommended because it merely aggravates the problem. It may be highly unpleasant for both parties and frequently leads to urgent involvement of the authorities.
A person can be locked out of a marital home. This is the case even though if they possess legal title to the property. That person has the right to reclaim it and reside there (unless there is a Court order to the contrary). As a result, even if one party changes the locks, the other can call a locksmith and gain access.
The property’s title is solely in the name of one party and the party can lock the other out. This renders the other party to prevent contacting a locksmith to re-enter the property. Under the Family Law Act 1975, that party may seek for a court order to reside in the marital residence.
Watch this video in case a partner is not complying with court orders
Importance Of Seeking Legal Advice
It’s an unpleasant and frightening fact that you or your child could be in danger. For example, your spouse who you once thought was close and trustworthy. You may also discover that you are the target of the allegations.
Understanding your rights and obligations under an exclusive occupation order with JB Solicitors is critical in any case. Our team of solicitors prides on providing just and honest legal advice. This is especially for parents seeking to protect themselves and their children.
Consult with our family-friendly team today.
