There are times when, after a marriage or de facto relationship breaks down, a couple will want to continue to occupy the same family home, although as a separated couple. This might be because of practical or economic reasons, or perhaps a desire to ease the burden on children. The question then becomes under what circumstances does this arrangement become a problem and the couple needs to then seek family mediation with their lawyers?
A fairly clear example of when dual occupation of a family home is not practical nor desired after a separation is when the relationship is hostile or there is violence involved. A concern that the children are being exposed to too many arguments is another. In these circumstances it’s time to get the lawyers and family mediation involved.
Ideally, as the family mediation will explore as the first option, the couple should try to reach a practical agreement by exploring sensible options that don’t excessively affect either party. For example, one of the couples might be able to move in with their parents as a first step in getting them out of the house. There will be times that an agreement won’t be reached or family violence has ruled out negotiation. In those circumstances the next step after family mediation is to discuss with your lawyers the option of applying to the Court for an exclusive occupation order to reside in the matrimonial home exclusively under the Family Law Act 1975 (the Act).
The court will take the following matters into account when deciding on these applications:
- the interests of any children;
- the relationship between the parties;
- the financial position of each party;
- whether it is practical and financially possible for either party to obtain alternate accommodation;
- any issues of family violence;
- alternate options available to the parties, for example, temporarily moving in with parents or moving into an investment property;
- convenience or hardship to either party of moving out; and,
- any other matter that the Court considers relevant.
Note: this is only a partial list. The Court is not restricted by the above list and will make whatever order it considers to be appropriate in the circumstances of the case.
If you have just separated, and require assistance on this issue, please contact a member of Coleman Greig’s Family Law team today, who would be more than happy to assist you through family mediation and whatever other steps you might need to take.