If marriage or a de facto relationship breaks down to the point where the couple decides to separate, in the normal course of events one of them would move out. However, occasionally there is a situation where instead of moving out, one of the individuals refuses to and this is often when the other partner will seek the help of your divorce lawyers.
When they do so, they often assume that all they need to do is get some kind of court order or go to the police in order to have the person who refuses to leave thrown out of the home. However, as their divorce lawyer will tell them, it is not as simple as that, and Australian family law does not have clauses in it where one partner can throw the other out of the matrimonial home simply because they want rid of them.
This becomes even more complicated where the couple has children and the risk can be that whilst their two parents are having a battle of wills, the children are caught in the middle, confused, and no doubt anxious as they see their parents argue over this.
Now, it can be the case in a separation that has not descended into a war, where a couple agrees that, rather than one of them moving out, they remain living in the home. This can be for financial reasons, but it is especially apt when they have children and want to minimise their angst over their parents splitting.
This scenario is allowable under the Family Law Act 1975, as although it states that a couple must be separated for at least 12 months before they can divorce, that does not mean they must live in separate homes. They can live under the same roof, and, as long as they have separate bedrooms and live as though apart, then this will still qualify as them being separated.
Going back to the less amicable scenario, where one partner insists that they are not moving out, there is not a lot that can be done by the other to force them out. Where a couple jointly owns their home they are each regarded as having an equal share of that property, and therefore both have as much right to live there as the other.
If there are no concerns of either person’s safety, or the safety of the children, as a result of one partner continuing living at home, neither the police nor the court would get involved nor make any kind of order that one of them should leave.
Where this obviously changes is if there have been instances of domestic violence or abuse or one partner is regarded as being at risk. In this case, one party can ask their divorce lawyer to seek an order under Section 144 of the Family Law Act. Under this, an injunction can be sought from the Family Court. Alternatively, it can be sought at the Magistrate’s Court, under the 2012 Domestic and Family Violence Protection Act.
When an injunction is issued it demands that someone either performs an act or prevents them from acting in a particular way. In the case of the matrimonial home, it would insist that the named person moves out. If they refuse then the injunction can be enforced with the help of the police.