can i change the locks on my house after separation
can my de facto partner lock me out if i am not on title?
In the absence of an agreement to the contrary, properties are jointly owned by parties in a marriage or de facto relationships. The question whether a partner has the right to change the locks in the family home is subject to many factors and depends on the circumstances. Usually, the justifiable reasons for changing locks are the following: separation is accepted by both parties; the departing party has established another residence and all his/her possessions have been removed from the matrimonial home.
The Family Courts will hear applications for the exclusive use of the family home. If the house is in the name of both parties the court will consider:
- the financial capacity of the party being excluded to lease a property
- how the arrangements for the children will be affected
- risk of violence
- whether the parties can control their conduct if they are together, considering that children should not be exposed to family violence
- physical lay-out of the house, whether it is possible for both parties to live under one roof but have minimal or no contact with each other
If the house is in the name of just one party, the other party must prove to the court his/her equitable right to exclusively or alternatively occupy same property. The Family Court will entertain application of this nature with the same abovementioned considerations.
In the event that one party stops mortgage payments, the other party who assumes the mortgage payment is entitled to include these payments as additional contributions in the final accounting for property settlement.
In this case the husband or the wife has the house in their name and wish to exclude the other party from the house by changing the locks and seeking to exclude them. This situation is more difficult on the part of the person who is not on title (and is seeking to be excluded). The person on title has the “legal” right to exclusively occupy as owner of that property.
It may be that the other person has a “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or exclusive occupation of that site.
The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses in these circumstances. Please see factors identified above for consideration the Courts will make in deciding these matters.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.