Who Gets to Stay in the Family Home During Separation?

Separation is a difficult process filled with many legal and emotional hurdles, and deciding who gets to keep the family home is often very difficult. It’s important you understand your rights and the legal framework around this process. Below is a comprehensive guide to help you get through this difficult time.

Legal Entitlements To The Marital Home

Ownership or not, both spouses are legally entitled to live in the marital home while separated. In other words, neither spouse can kick the other out or force the locks without mutual agreement or a court order. The right to reside in the home does not depend on whether the property is owned by the person or jointly with another or any other.

What If One Spouse Refuses To Leave?

Situations become stressful if you and your spouse cannot agree on who should leave the home. It should be mentioned that you cannot force your spouse out unless you have a court order, even if the property is yours. This protection of both parties’ rights makes sure that during the separation process, no one's rights can be violated.

Moving Out And Your Rights

If you decide to leave the family home you do not have to give up your rights to the property and any possessions. You can claim a part of the property during the settling process. Important personal belongings should be taken with you when leaving so you don't have to deal with any problems later. You also have the right to return to the home at any point during the separation period unless you have a court order against you.

Considerations For Children

Think of the interests of your children when deciding whether to leave the family home. If you move them away, it can be disruptive, so maybe it’s better to keep them in a stable place. If your child wants to move out to live independently, it is highly recommended that you seek legal advice to an agreement about where your children are going to live – such as a consent order or parenting plan.

Exclusive Occupation Orders

There are times where you can apply for an exclusive occupation order against your spouse to force them out of the home. This order, made by virtue of Section 114 of the Family Law Act is an interim order and does not affect final property settlement. The court will look at things like the ability of each party to finance themselves, what would be in the best interests of any children involved and any evidence of abuse or threats of abuse.

Domestic Violence Considerations

The rules are different in cases of domestic violence. It is possible to get a domestic violence protection order so that you and your children are safe and sound. This protection order can compel an abusive spouse to leave the home and stop them from coming back. 

Living Under The Same Roof

Usually after separation, it’s not easy to live together in the same home, but sometimes it’s necessary because of financial problems or for other reasons. To convince the court that you do in fact reside separately, it's important to live separately within the home while having separate finances.

Alternatives To Moving Out

• Birdnesting: It's when children stay in their family home and parents rotate living there. Such an arrangement can ensure the children are stable.
• House Splitting: If the home is large enough, the home can be divided into separate living areas for each spouse with the common areas being shared by both.
  
  

Practical Considerations

• Financial Viability: Ask yourself if you can afford to live on your own and support two households.
• Documentation: When you’ll leave, take important documents and personal belongings with you.
• Communication: If doable, come to an arrangement with your spouse concerning managing joint bills as well as parenting arrangements.

Seeking Legal Advice

Separating can feel challenging and choosing who moves into the family home is always tricky. A family lawyer can provide you consulting and help you make the right decisions. They help you in the process of applying for the exclusive occupation orders and negotiating domestic violence issues and ultimately ensuring that your rights are protected.

Conclusion

When you separate, deciding who gets to stay in the family home is a legal and personal issue which needs deliberate consideration. Familiarizing yourself with your rights and getting the right legal advice can assist you in navigating this difficult time to a fair outcome. Prioritize the well-being of any children and aim for an answer that causes the least degree of chaos and interjection for everybody.

Separation can be complex. Don't go through it alone. Consultation at Richardson Murray Family Law will give you the legal guidance you need to make sure you and your family are safe and that your rights are protected.