In Australia, the major concern of couples undergoing a legal separation phase is to determine who can stay in the house during this period. As per the Australian family law separations, both parties can reside in the home until the orders are stated in the court. The law does not ask any of either party to vacate the family home due to the other party’s demand. Eviction cannot take place without any legal proceedings, irrespective of the name on the property title.

However, it is true that both parties have the automatic right to live in the family home following the separation, but any of the parties can seek an Order for the sole occupation of the home in the Federal Circuit and Family Court of Australia under Section 114 of the Family Law Act.

So, couples who are in the separation phase must understand the legal laws associated with separation in order to make the right decision. You must seek legal advice by consulting a divorce lawyer in Parramatta who will help you understand things properly. At Eckert Legal, we have experienced lawyers who will give you the best advice before you go for any legal proceedings.

In this blog post, we will discuss the essential things about who can stay in the home that a couple must know during separation.

Things To Know When Planning To Move Back To House After Separation

As discussed, couples can move back into the family home after separation in Australia, but here are some major factors and complications that have to be taken into consideration:

Occupancy Orders

Any of the parties can seek a sole occupancy order in the country from the Federal Circuit and Family Court. The court will accept and proceed to issue sole occupancy in situations like domestic violence in order to safeguard the well-being of the kids.

No Automatic Exclusion

After the post-separation, the couples have the right to return to their home. However, in this case, there are overarching principles and practical considerations that involve the children’s interests. 

Practical Considerations

Even if any of the parties holds the right to return, it may not be practical, especially when there is an involvement in the best interests of everyone, such as;

  • When children are involved, it can lead to anxiety and conflict that can strain the situation.
  • If you are returning to the home without understanding and communicating with your ex-partner, this may be considered intimidating or threatening, causing legal complications.

How You Can Legally Seek For Sole Occupancy?

According to the Family Law Act 1975 Section 114, the court will issue orders for the sole occupancy of the family home. The law is made to address circumstances where cohabitation leads to untenability. The request will be accepted, and the orders will be granted based on different factors such as domestic violence, child well-being, and practicalities of shared occupancy.

Court Orders and Decisions will be based on;

  • Assessing Factors: The court will assess different factors while it makes its decision on occupancy orders. It will include the needs and well-being of children, considerations of the financial circumstances of either party, domestic violence record or complaint, and feasibility of shared occupancy.
  • Occupancy Order Outcome – A successful party can live in the family home until the court makes the final property settlement.

Rights When You Leave The Marital Home

  • Voluntary Departure – If either party decides to leave the marital home in order to reduce stress and conflict, the property entitlements will not be impacted during the property settlement discussions.
  • Property Claims – Keeping in mind that leaving the marital home will not forfeit the right to claim for a property share during the settlement process.

Check Out Other Essential Factors To Consider Who Can Stay At Home During Separation

Brief Idea on the Legal Concept of Separation

The separation will be considered when the couple decides to end their marriage or relationship. For a legal separation, the couple has to make the decision to live apart and live separately without the chances of reconciliation. During the separation period, the couples get into the stage to make important decisions regarding their property division and children. Therefore, it is important to understand the legal concept in detail. At Eckert Legal, our professional lawyers will help you understand the laws. 

Property Ownership

The essential thing is to determine who will get the chance to live in the house during the separation. There can be two scenarios: Sole Ownership and Joint Ownership. 

  • Sole Ownership: This is when a single partner solely owns the family home. It does not necessarily mean the owners hold the full property entitlement. The decision will undergo a case-by-case situation based on the specific needs of either party. Later, the court will decide who can stay in the home. 
  • Joint Ownership: When both parties own the joint owners of the property, then the situation can get complicated. In this situation, the decision regarding who will stay in the home will depend on different factors, such as financial contributions and non-financial contributions. It will also include the needs of the children who are dependent.

Mediation and Dispute Resolution 

Before going to court for legal proceedings, couples in the separation phase are often advised to seek mediation and resolve disputes. It can help both parties to reach a harmonious and satisfactory agreement on living arrangements. It will let the couple get rid of costly and exhausting legal proceedings.

Financial and Non-Financial Contributions

The family law of Australia also considers these contributions to assets when deciding on who should stay in the family during the separation phase. The financial contributions include savings, income, and mortgage payments. The non-financial contributions will involve child care and some housework, which are also identified and taken into account. Our lawyers will help you sort and list both the contributions. 

Necessity of Temporary Orders

Sometimes, separation can become contentious. In this case, temporary arrangements need to be made until a final decision is made in court. The parties can seek a temporary order from the family court to decide who can stay in the home during the separation. 

What To Do When You Consider Moving Back In?

If you are making the decision to move back in,

  • Seek Legal Advice – Legal guidance is necessary. You can reach out to our family law professional and divorce lawyer in Parramatta to understand the implications and rights of your decision to move back in
  • Communicate With Your Partner – If possible, try to communicate openly with your ex about your intentions. This can reduce conflict and lead to an agreement on living conditions.
  • Prioritise Safety – If you have fear regarding your safety or any possibility of family violence, discuss the concerns with the lawyer and, if necessary, seek an Apprehended Violence Order (AVO).
  • Alternative Accommodation – Check out the necessity for an alternative accommodation based on the dynamics of the present situation.

Final Words

So, when the decision has to be made on who will stay in the house after separation, do not forget to check out the factors and considerations. Make sure you and your partner are aware of the legal concept and proceed accordingly. If you are confused about making the decision and dealing with conflicts, get in touch with our divorce lawyer in Parramatta and family law professionals to help you solve things peacefully.