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Remaining In The Matrimonial Home During Separation

Submitted by Jamesnoble on Thu, 02/23/2023 - 19:30

A common question asked in Family Law is who legally entitled to the matrimonial home during separation?

It is not as simple as one party kicking the other party out of the home.

What be done if the property is in your name or What if the property is owned by both parties?
Property which is part of a Family law dispute has different rules to commercial and property law. Family Law the possession and ownership do not have the same weight in determining who is able to stay in the home. Both parties are equally entitled to live in the matrimonial home during separation – ownership of the property is not relevant.

Either party at any point during separation can choose to leave the matrimonial home but no one can be forced to leave. This means you cannot make your partner leave and then once they are gone change the locks. It is important to note that this is handled completely different in domestic violence matters.

What are your rights once you choose to leave the matrimonial home during separation?
If you choose to leave the matrimonial home, during the property settlement you can still claim part of the property however, the property no longer becomes your place of residence, and you cannot just enter the property at your leisure. If you are choosing to leave the property it is important to take any important personal belongings that you legally own (individually or together, if agreed).

You can make arrangements with your partner who is still residing at the matrimonial property to property to collect any belongings or if there are children of the relationship for changeovers.

However, keep in mind that it can create conflict if you attend the property unannounced and can even lead to the other party applying for a domestic violence order.

It is important to understand that if you have chosen to leave the matrimonial home you do not lose your right to the home or your possessions. If there are children in the relationship you should also consider whether it is in your children’s best interests to move them out of the matrimonial home. We advise seeking more information and legal advice on coming to an agreement about your children, such as a consent order or parenting plan.

What can you do if your spouse won’t leave?
If you and your partner cannot reach an agreement, you aren’t able to force your spouse out of the matrimonial property. Although both you and your partner can remain living in the matrimonial home until you reach a property agreement, we often do not recommend this as it can often lead to problems later down the track.

Again, this is not necessarily the case if there are domestic violence proceedings on foot or Orders in place. Depending on your circumstances, in special circumstances, the Court can decide to make Orders which remove your spouse from the property.

Making an application for the exclusive use of the matrimonial home?
You can apply to the Courts seeking Interim Orders for your partner to leave the matrimonial home. This can be done by filing an “initiating application” or an “application in a proceeding” if you already have a case filed in court. You are also required to sign an affidavit which is a document that sets out true facts as a form of evidence to the Court. This is where you would set out the reasons for the Orders you are seeking and if any, evidence of your provable domestic violence.

If you considering separating from your partner and you wish to discuss your next steps and property settlements contact the Brisbane family lawyer team at James Noble Law today for a free no-obligation 20-minute consultation to discuss your rights, options, and legal avenues available to you. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane.

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