Following separation, it is not uncommon that one party may seek to stay in the former matrimonial home, to the exclusion of their former partner or spouse. This is particularly so if there are factors which may limit their ability to obtain alternative accommodation.
The test often referred to in applications for sole occupation is the “balance of convenience” or “balance of hardship”. This exercise requires the Court to weigh and balance the benefits to the spouse seeking to remain in the property versus the hardship that the other party would suffer as a result of being required to leave their home.
An application for sole occupancy however should not necessarily be determined only with reference to the balance of convenience. In the case of Dean and Dean (1977) FLC 90-213, the Court noted that in order for the Court to grant an application for exclusive occupation of a property, caution should be exercised when making such orders and, “it must not be reasonable or sensible or practical for the parties to the marriage to live in the same house.”
In the case of Davis and Davis (1976) FLC 90-062, the following criteria were considered by the Court in determining an application for sole occupation:
1. The means and needs of the parties;
2. The needs of any children of the relationship;
3. The hardship to either party or to any children of the relationship; and
4. Whether the conduct of one party may justify the other party leaving the home, or seeking that the first party be excluded from the family home. This does not mean that the removal of one party from the family home is a sufficient basis for a sole occupation application to be granted, in order to enable one party to live more peacefully.
Other factors relevant to the determination of an application for sole occupation have been set out in subsequent decisions, including the following considerations outlined in the case of Plowman v Plowman (1970) 16 FLR 447:
1. Whether a party could be adequately housed elsewhere;
2.Whether there are funds, of either party, that could be used to enable one party to obtain alternative housing;
3. What housing arrangements operate in the best interests of the children;
4. Whether both parties are registered owners of the property;
5. Whether the Court could make an injunction preventing certain conduct from one party, in order to address any concerns raised by the other party regarding the first mentioned party’s conduct.
For advice in relation to your property settlement or obtaining sole occupation of your home, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe