Living arrangements post separation

If you have just separated from your partner, you might be wondering what happens next. For example, how do you decide who gets to stay in the house? What do you do with all of your belongings?  

Some couples decide to separate but remain under one roof.  For example, a couple may live together but no longer act as though they are in a genuine domestic relationship (i.e. you might sleep in separate rooms and stop socialising as a couple). Couples may decide to remain under one roof due to a number of factors, such as their financial circumstances or to provide stability for the children.  The arrangements may be temporary or they may last years.

If you are not comfortable remaining separated under one roof, you will likely need to have a discussion with your partner about who will remain in the property.  This decision may be impacted by multiple factors including:

1.  Whether there are children and who is the primary carer of those children;

2.  Who is on the lease if it is a rental property;

3.  Who is on the title of the property if you are owner occupiers;

4.  Whether either of you can meet the outgoings for the property;

5.  Whether either of you are able to obtain suitable accommodation elsewhere; and

6.  Whether there are any safety considerations.

It is important to discuss and establish boundaries around each of you accessing the property and for what purpose.

In the event you do not agree about who remains living in the property, you can also make an application to the Court to determine who will have sole occupation of the property and who shall meet the outgoings in relation to that property.  See the following blog post for more information about what a Court considers in an application for sole occupation: Who gets to stay in the house after we separate)

If you remain in the property, you will also need to think about how to divide the household contents.  You may not agree about how to divide big ticket items, such as whitegoods, furniture and valuable artwork.  It is useful to keep track of how you divide your household contents, particularly if you have valuable assets as this will generally form part of your property settlement.

It is generally reasonable to allow the other party to collect their belongings and in particular, items which are not in dispute such as personal documentation, clothing and personal effects.  If you are concerned about your former partner collecting their belongings, you can seek advice on establishing a process for them to collect their belongings. For example, a lawyer can advise on safety measures to employ to ensure there is no conflict when they collect their personal effects.

As with anyone moving house, you should also think about whether you need to redirect your mail, update any account details (for example, your electricity and gas) and make sure your home insurance is up to date.

If you would like to discuss your accommodation options in the context of a separation, or if you would like to understand your rights and obligations when it comes to the division of your household contents, you can book an initial appointment with one of our specialist family lawyers by contacting us on (02) 6225 7040, by email at info@rmfamilylaw.com.au or get started now online  to obtain advice.

Author: Anika Buckley

Sole Occupation: Who gets to stay in the house after separation?

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

Relocation in Family Law Matters: What you need to know

Wanting to move to a new city, state, or country with your children is a common issue that arises in family law matters and is referred to as “relocation”.

So, what do you need to know about relocation matters?

1. If you want to relocate with a child or children, then you should try and talk to the other parent/s about your proposal to relocate. Attending family dispute resolution or mediation can be a useful step to discuss your reasons for wanting to move and to attempt to reach an agreement with the other parent, including what the relocation would mean for the children, for you, and for the other parent.

2. Often if an agreement is reached for the children to relocate with one parent, the children will spend more time with the “non-resident” parent during school holiday periods. If you can reach an agreement about the proposed relocation, it should be formalized by way of Consent Court Orders or a Parenting Plan.

3. If you cannot reach an agreement with the other parent about your proposal to relocate with the children, then you will need to make an application to the Court seeking Orders permitting you to relocate the children’s residence.

4. If you want to stop the other parent from relocating with a child or children, then you may elect to make an application to the Court seeking an order prohibiting the other parent from relocating the child’s residence outside a certain area or region.

5. If you unilaterally relocate the residence of the children without the other parent’s consent or without an order of the Court, there is a real risk that the Court may require you to return the children’s residence to the place that you moved from until the matter can be dealt with at a final hearing. This can cause significant disruption to your life, but more importantly to the children’s lives.

Issues of relocation are difficult matters for all parties, in particular the children and parents who are subject to Court proceedings. The effect of relocation generally means that the existing parenting arrangements, if there are any, will no longer be practicable and so new arrangements will need to be determined. The Court generally prefers to make decisions regarding a relocation on a final basis, after a final hearing, and not on an abridged interim basis.

If you are thinking about relocation with you children, or you want to stop another parent form relocating with your child, make an appointment with us on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers to obtain advice.

Author: Ellen Russell