Orders for the sole and exclusive use of property after separation.

With the current housing crisis in Western Australia, more separating couples are living under one roof until their property settlement is finalised.

While some parties can make this work, others find themselves in a situation where a party refuses to move out of the family home, and they are unable to leave due to financial inequality. In such circumstances, it is likely to be quite distressing for a party to think that their only options are homelessness or staying under the same roof as an ex-partner.  Obviously if there is a history of family violence this situation can be even more dire.

In these circumstances the party who wants to stay in the home alone should apply to the Family Court of Western Australia (‘the Court’). Once an initiating application is lodged for property division, or parenting and property matters, the Court has the power to exclude one party from the matrimonial home until the matter is finalised.

Sections 114(1) of the Family Law Act 1975 (‘FLA’) for married couples, or section 235A(1) of the Family Court Act 1997 (‘FCA’) for de facto couples in WA, provide the Court with wide powers which include making such orders or granting such injunctions as it considers proper. One express power relates to the use or occupancy of the matrimonial home.

If it is determined that it is proper to do so, the Court can exercise its discretion to exclude one party even if that party owns the home and their ex-spouse has no legal or equitable interest in the property.

What is required?

Firstly, the Court must consider and be satisfied that an injunction under sections 114(1) or 235A(1) is proper.

To be satisfied, the Court does not need to find that the situation is intolerable or impossible, but it must be satisfied that it would not be reasonable, or sensible, or practicable to expect both parties to continue living together.

The decision to grant an injunction that provides exclusive use of the matrimonial home to one party is at the discretion of the presiding Judicial Officer after providing procedural fairness and giving due consideration to each party’s submissions. It is an interim application, so the Court’s ability to test allegations is somewhat limited. However, the test is the same whether both parties continue residing at the premises or where either party has moved out and now seeks to return and have sole and exclusive use of the property.

Like any application, careful consideration must be given to the uncertainties of litigation before making this type of application. Applying for this relief is by no means a straightforward ‘slam-dunk’. Even if a party feels it is intolerable to be under one roof with their ex-spouse, it is an objective test that the Court must apply.

Considerations

If an application is made, the Court requires evidence on four primary considerations before exercising its discretion to grant or deny the application for sole use and exclusive occupancy. The principles that guide the Court in such applications serve only as guidelines for exercising its discretion under the relevant sections. They are not a fixed list of criteria.

The matters that should be addressed include:

1. the means and needs of the parties, such as
   • the availability and suitability of alternative accommodation; and
   • the financial circumstances of the parties that might enable them to pay for alternative accommodation.
2. where there are children, the child(ren)’s needs and welfare, such as
   • any special care arrangements for the child(ren)
   • their proximity to school, and most importantly
   • any abuse or exposure to family domestic violence, or other safety concerns, if the parties remain under the same roof
3. the hardship to either party if the Court makes or does not make an exclusion order (the balance of convenience), and, where relevant,
4. conduct of one of the parties that might justify making an exclusion order.

The balance of convenience alone is insufficient to justify an exclusive occupation Order; it requires justification beyond inconvenience, and beyond allegations, that create a strong impression of continuous tension in the home. (Notaras & Notaras [2021] FamCA 527 [15]-[18]). “It would be unlikely that the mere existence of tension and argument in the home, short of evidence of unacceptable conduct or a clear detriment to the welfare of a child” would lead the Court to grant an injunction for exclusive occupation (S & S [2002] FamCA 59, [41]).

Further, sections 90AE (FLA) and 205ZLF (FCA) extend the Court’s power to bind third parties. If an applicant or respondent holds an interest in the property or in an entity that owns the property, it is connected, and the Court has jurisdiction to make orders under sections 114(1) of the FLA, or 253A(1) of the FCA, in relation to that property, if it is satisfied that it is proper to make an order in the circumstances.

Disclaimer

Please contact us if you require further information about this.

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.