Applying for Exclusive Occupancy by Spouse or De Facto Partner

Once spouses or de facto partners separate, their house will be included in their asset pool unless there are binding financial agreements that say otherwise. Thus, pending the property settlement case or until the parties reach an agreement, the house will remain to be co-owned by the parties. There are certain cases, however, where the parties find it difficult and even unbearable to continue to live together in one house.

In a situation where one party would like to exclude the other from the house an application for an Exclusive Occupancy Order can be filed with the court. An Exclusive Occupancy Order is an interim order that provides temporary relief to the applicant by ordering the other party to vacate the house and installing the applicant as the lawful occupant of the house. It being an interim order, the Exclusive Occupancy Order will have no effect on the property settlement case of the parties.

The Order is not a determining factor in the division of the properties nor should it be construed as an award of ownership over the house. For the duration of the Order, the party who was ordered to vacate must not return to the house unless allowed by the court.

Usually the court will issue an Exclusive Occupancy Order if there are allegations of violence or domestic abuse. The issuance of the order is one way of protecting the applicant and the children, if any. The other factors taken into consideration by the court whenever issuing the order are the financial capabilities of the parties, the children’s best interests and who has the primary care of them.

The court will endeavour to make the order as just and reasonable as it can be. For instance, the court will most likely award the sole occupancy of the house to the primary carer of the children since it would not be in the best interests of the children if they will be thrown out of their childhood home. On the other hand, the court will also consider whether the other party who is proposed to be excluded from the house can afford to lease a residence.