When your Ex Won’t Move Out…..

There are times when both parties wish to remain in the family home post separation.  You may feel you have a greater right to remain in the home; maybe it was your home prior to the relationship or marriage.  You perhaps made greater financial contributions to the home or have primary care of the children, or you simply may have nowhere else to go nor the financial resources to leave.

Whatever the reason in the event of family law separation both parties are legally entitled to live in the family home.  It does not matter whose name is on the ownership of the house. 

If you leave the house, you do not lose your rights to a share of the house, or other property. You can also legally protect your interest in the family home if your name is not on the title by placing a caveat on the property which registers your interest in it.

You cannot be forced to leave the property at the mere demand of the other party in the absence of safety concerns.   If there are no safety concerns, no court orders have been breached, the removal of one party from the residence cannot even be enforced by the police.

Can you change the locks?

It is generally not advisable to change the locks as a tool to evict a party from the property, in addition to increasing the acrimony between the parties it can also reflect poorly in any subsequent court proceedings.

If the property is owned by one party, that party has the right to change the locks, if it is jointly owned then both parties are able to change the locks.  If the property is being leased then the landlord should be consulted about the lock change.   Even if the party who is remaining in the property is not the legal owner, it can nonetheless be justifiable for them to change the locks if the other party has moved out and has removed their possessions.  It is argued that the remaining party is entitled to the peaceful enjoyment of their residence, similar to that of a tenant.

How can I get my partner to leave?

To legally force your partner to leave the home and stay out, you will need to obtain an exclusive occupancy order from the court.  These orders are usually only made in circumstances involving threats, domestic violence and/or safety concerns for one of the parties or their children or whether the children are being exposed to parental conflict.  

We would need to explore the pitfalls of remaining in the home with your former spouse – weight it up against what you want to achieve by remaining in the property and is there a better option for you.  For example, if the costs of establishing a new household is a deterrent, we may need to consider whether an application for urgent or interim maintenance to fund relocation would be appropriate.

Can I take the children with me?

You can take the children with you if there are concerns about your safety and the children’s safety.  However, if you want to move away with the children and the move makes it difficult for the other parent to see them you need to try to get agreement first.

If you are afraid to try to get the other parent’s agreement and are worried about your safety, we can speak to you about your options.

If your former partner refuses to vacate the home or wish to discuss your options prior to separation and your matter generally, you should contact our office to make an appointment on 9614 7111.