Author

Alan Weiss

19th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.

Exclusive Occupancy Order: Who Can Stay in the Matrimonial Home

The matrimonial home is jointly owned by the spouses or de facto partners. In case of separation or divorce, a party can apply to the court for an exclusive occupancy order.

Legal right versus equitable right

Many matrimonial homes are titled under the names of just one spouse or de facto partner. This particular person has the legal right to exclusively occupy the house in case of separation or divorce. On the other hand the spouse or partner who is not on the title has an equitable right to remain in the house.

Who has a better right to exclusive occupancy?

Actually, both parties have a right to the property. Regardless of the fact that the house is titled under one person’s name it is still jointly owned by the parties. Thus, each party has a right to continue living in the house until the court orders otherwise.

The matter would be best left to the determination of the Family Court unless the parties can resolve this issue through an agreement. An application for exclusive occupancy order from the court will resolve the dispute of parties who oppose each other’s occupancy of the matrimonial home. The burden of proof for sole occupation rests on the party who is applying for the order.

Exclusive occupancy order

This court order removes a party from the matrimonial home while the other party remains. There is no determination of ownership or division of the house. The right to continue living in the house will only be temporary until a property settlement regarding the house is finalized. 

How does the court decide an application for exclusive occupancy?

The court will be following an objective test which requires determination of what is proper considering the overall circumstances of the parties. It is a serious matter to turn out a party from his own home. This is why the court will be exploring all possibilities so that as much as possible a party does not have to be ejected from the matrimonial house.

The court will look at the physical lay-out of the house whether it is possible that a party can have his own living quarters with a separate entrance. The relationship of the parties will be scrutinized by the court whether there is absence or presence of tension, violence and discord in the home. Mere dislike of the other party, annoyance or irritation does not entitle the applicant to sole occupancy of the house. However, family violence, abuse or the detrimental exposure of the children to the conflict between the parents are sufficient grounds to the issuance of the order. A child’s relationship with both parents is also another factor for the court to consider.

The income and financial resources of the parties will likewise be considered since if a party is removed then he will have to look another suitable accommodation.

In summary, the court will be taking into account the necessity of having a party removed and the conduct of all parties concerned.

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