Granting exclusive occupation of the former family home

Introduction

When a marriage or de-facto relationship breaks down, sometimes parties continue to live separately under the one roof while they finalise their property settlement and parenting arrangements.  This can be an economically viable and convenient situation if both parties get on, however, it is not necessarily suitable in cases where the relationship is particularly acrimonious and parties are fighting to have sole and exclusive occupancy of the family home.  In cases like these it is common for one party to occupy the former family home and the other party to seek alternative accommodation.

Unless there is a Court Order stating otherwise, both parties to a marriage who are registered owners are entitled to live in the family home following separation.

Where parties are disputing who should live in the former family home, it often plays out that one party will change the locks to the home, effectively locking the other party out, or go so far as to make an application for a violence restraining order so as to prevent the other party from attending the home or communicating with the party who has stayed in the former family home.

This approach may not be effective and at times only serves to inflame the situation further, prevent the parties from having any fruitful negotiations and more often than not leads to urgent and expensive Court proceedings or the involvement of the police.
 
If an application for exclusive occupation is needed, one can be made to the Family Court of Western Australia to seek exclusive occupation of the former family home by way of an injunction.

Whilst there are a number factors, the Court should use as guidelines when determining whether exclusive occupation should be granted, these guidelines are not exhaustive and they should not be treated as laying down a fixed criteria which must be established for the application to succeed (Dass v Dell1; Kerslake v Kerslake2).

Applications for exclusive occupation:

Considerations

When the Court considers the question of whether one party should be granted excusive occupation, the overarching guideline is the practicality of granting exclusive occupation, having regards to the realities of family life (Bassett v Bassett3).

Means and needs of the parties

The Court should consider the income and financial resources of the parties to meet costs of relocating and whether any alternative accommodation is available for either party.  The Court may also consider the degree to which the former family home is an essential part of a business owned and/or run by one of the parties (Mafrica v Mafrica4).

Needs of children

If there are children to the marriage, the child’s needs are a predominant consideration.  It is common for the party who has the care and control of the children to reside in the former family home with the children (In the Marriage of Gillie5).

Hardship to either party or to the children

The Court should balance the financial and emotional hardships each party, including the children, will face if they are not granted exclusive occupation of the former family home.  If the children were to be housed in unsuitable accommodation, it is likely the party with control and care over the children will be granted exclusive occupation.

Conduct of the parties

Conduct of the parties was traditionally an essential matter to be taken into account when granting exclusive occupation.  However, the modern approach has viewed the conduct of the parties as only one of many considerations (In the Marriage of Davies6).

Where there has been physical violence or there are allegations of physical violence which puts a party in fear for their life, that party will often be granted exclusive occupation of the former family home (In the Marriage of Harris7).

It is necessary to note that the party who is the registered proprietor of the property is not a relevant consideration and the Court will make whatever order it considers to be fair and just in the circumstances of the case.

Recent decision

In the case of Dass v Dell8 an application was made by Mr Dass, the former de-facto partner of Ms Dell, for exclusive occupation of the former family home.  Mr Dass worked as an engineer out of his home office and was required to be on call 24 hours a day, 7 days a week. Mr Dass also kept confidential and sensitive security records at the former family home, which was also his registered address of employment.  Mr Dass had left the former family home prior to these proceedings, to comply with a violence restraining order taken out against him by Ms Dell.

Ms Dell did not wish to retain the former family home, but rather sought the sale of the property.  At the time of these proceedings Ms Dell was living in the former family home.

The Judge granted Mr Dass exclusive occupation.  Significant weight was given to Mr Dass’ employment and his reliance upon the former family home to maintain his employment, which was required to service the mortgage of the home.

Lavan Legal comment

There are many factors the Court will consider when determining if it is appropriate to grant exclusive occupation.  As noted in Dass v Dell9, allegations of physical violence is no longer a predominant consideration, rather the Court will balance all the relevant factors of the family, and the party’s employment circumstances when coming to a decision.

It is advisable for each party to seek legal advice as to their legal entitlements and advice on the best way to proceed.

1 [2015] FCWAM 181 (18 August 2015) [63]

2 [2014] FCWAM 153 (10 July 2014) [33]

3 [1975] 1 ALL ER 513, 520

4 [2015] FCWAM 103

5 (1978) 4 Fam LR 127

6 (1982) 8 Fam LR 975

7 (1980) 5 Fam LR 852

8 [2015] FCWAM 181 (18 August 2015)

9 [2015] FCWAM 181 (18 August 2015)