Sole occupancy of the former matrimonial home (“FMH”), as it is referred to in the context of married parties, or (married couples) or specified residence, as referred to in the context of defacto parties, is a topic immediately considered during the breakdown of a relationship. The home can become a battleground as ex-spouses may decide to separate but have difficulty agreeing on which party should vacate the home. Regardless of whether the home is a rental property (lease in sole or joint names) or owned by the parties (sole or joint names), each party is entitled to remain living in the home, unless there is a court order otherwise.

Background

Section 114 of the Family Law Act 1975 (Cth) (“FLA”) gives power to the court to make orders or grant an injunction relating to:

(a)       Use or occupancy of the FMH (married couples); and/or

(b)       Use or occupancy of a specified residence of the parties (de facto).

Whilst the Court the power to grant an injunction, these orders are made with caution. In Davis and Davis (1976), the Full Court set out a non-exhaustive list of factors the court should take into account when deciding whether or not to exercise discretion to make such an order: The factors included:

  • The parties means and needs;
  • The children’s needs;
  • Hardship; and
  • The relevant conduct justifying one party being expelled from the home.

Ultimately, each case must be determined on its facts.

In Merritt and Phillips [2017], the wife brought interim proceedings for sole use and occupancy of the matrimonial home. In this case, the wife advanced that the children were subject to family violence and abuse penetrated by the husband, husband having alternative accommodation available to him, and wife’s commitments in caring for the children. The husband denied the allegations and wished to remain in the home due to his deteriorated physical health condition.

It is noted that the parties had entered into prior consent orders that the children remain in the primary care of the mother and the father have only supervised time with the children ‘on the basis of protective considerations’.

The court took into consideration the children identifying the matrimonial home as ‘their home’, financial evidence that the wife would be able to meet obligations for mortgage and outgoings (pending final orders), and the conduct of the husband was questionable in context of him finding alternative accommodation. The court ordered for the husband to vacate the FMH and wife to have sole use and occupancy of the home.

On the other hand, in Kimberley [2011], both parties sough sole occupancy of the matrimonial home which was occupied by the husband. The court stated that the onus was on the mother to establish a case for exclusion of the father and not merely that it was convenient that the mother have sole occupancy of the matrimonial home. The court held that it did not find it is proper to remove the father from the matrimonial home. The court found the mother with her children were living with her parents at the time were adequately housed, thus although it might be more convenient for the mother to return to the FMH, the balance of convenience was not taken into account when deciding what was proper in the circumstances.

Assets at risk

It is best practice to advise that where there are assets including the FMH or specified residence at risk of disposal by either party or to otherwise arrange their financial affairs with a view to prevent the other party from receiving a share on the asset apply for an injunction to restrain the party from taking particular action which reduces the asset pool (i.e., selling the FMH).

As relationship breakdowns is a difficult and stressful period between the parties, there may be circumstances where the party seeking the injunction cannot obtain the consent of the other party (consent orders), or where it would be detrimental to try to obtain consent, a party can apply for an injunction. The application can be made on an “ex-parte” basis meaning that the other party does not need to be present in court and does not have to know about the application being made.

Separated but living under the same roof

Separation under one roof is when parties to a marriage separate but continue to live in the same home. It may be for a few days, weeks, months or years following separation.

Separation under the same roof does not just mean sleeping separately. The Federal Circuit and Family Court of Australia (“FCFCOA”) requires evidence that either party said the relationship was over and, from that time, did not act like a married couple, but you behaved like a separated person both inside and outside the home.

Before making an application for divorce, you must be separated for at least 12 months.

It is best practice for parties to seek a division of property following separation and prior to divorce (where practicable). This allows a more flexible time frame to apply for property settlement. Time limitations for property settlement are:

  • For married couples, 12 months after the date of divorce; and
  • For de facto couples, 24 months after the date the relationship ended.

Ending financial relationships

Once a relationship has broken down and parties have separated, it is in the interest of parties to end financial relationships between them once and for all – allowing each party to move on without being financially tied to the other party. This applies to both married and de facto couples. The court has the duty to end financial relations as found in section 81 FLA (married couples) and section 90ST FLA (de facto couples).

Nevertheless, the court has power not to end financial relationships between parties. An example is where periodic spousal maintenance is necessary due to a lack of property to divide to meet the maintenance needs of the parties.

In Eades [2009], the wife proposed finality orders under FLA section 81 to take over from the husband the mortgage payments on the home and have the property in her name. The husband proposal that the wife remain in the FMH for another nine years with the children, and he continue the payments.

When making orders under section 81 FLA, the court held that the husband’s proposal requires that the parties continue to be financially entangled for another nine years, with the possible risk of the necessity of further litigation in circumstances that the husband either fails or is unable to meet his obligations to make mortgage and other payments in relation to the former matrimonial home in the intervening nine years.

It was decided that continuing to be financially entangled with the husband would have a significant impact on the wife. The court applied section 81 to end all financial ties with the husband allowing the wife to take over the mortgage from the husband and have the title of the home in her name.

The exercise of the duty to end all financial ties between parties is ultimately determined on its facts. This is generally considered for the best interest of parties where there is no necessary need to continue financial ties. It allows parties to move on with their separate lives without being concerned about protecting their assets from their former partners.

The FLA sets out the rights, duties, powers and liabilities of spouses and children, and provides for enforcement of those rights and liabilities. Cases are determined on their facts and not all decisions the desired outcome of parties. The FLA underlies the philosophy of no fault; promoting the best interests of the child and promoting reconciliation. Although the court can make judgment in family law matters, it is the parties who know what is in the best interest of their case. Having the ability to negotiate and enter into agreements which are just and equitable by way of consent can ease the stress and detriment that may come from legal proceedings. Parties and their solicitors may draft the financial agreement and have the court make the agreement a legally binding and enforceable document where there is a breach.

RAMSDEN FAMILY LAWYERS – HOW WE CAN HELP

Navigating the complexities of family law, particularly concerning the former matrimonial home, can be challenging and emotionally taxing. At Ramsden Family Law, our team of skilled and compassionate professionals is committed to guiding you through these difficult times, ensuring that your rights are protected, and striving for the most favourable outcomes. If you’re grappling with the issue of sole occupancy or other legal complications arising from a relationship breakdown, don’t hesitate to reach out. We’re here to offer a listening ear, legal counsel, and a strategic approach tailored to your unique circumstances. Contact Ramsden Family Law today and let us lighten your burden – because you don’t have to face this journey alone.

Written by Reece Ramsden

Posted in: Divorce, Latest News, Other, Property

May 29 2023