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Should I stay or should I go? Whether to leave the home after separation

Richard Bartram | | Family Law, Divorce, Separation

Advantages of staying

  • It is often cheaper to stay in the home rather than set up a new house with its associated costs such as rent, bond, furniture and utilities.  This is particularly so where the person wishing to move out has no or only modest income or savings.
  • Leaving the home can make it harder to spend time with the children if there is acrimony between the parties and there are no Court orders about the children’s arrangements.  Staying in the home helps to ensure that each party will continue to spend time with the children.

Disadvantages of staying

  • Where both parties remain in the home, conflict between them may escalate.  If this conflict is witnessed by the children it will be detrimental to their wellbeing.  It is well accepted that it is not the separation of parents which is of greatest concern to children, it is their parents continuing to fight following separation.
  • There may be disagreement between the parties about who pays for household expenses.
  • There is little privacy for either party whilst they both remain under the one roof.
  • It may be difficult for the parties to negotiate a resolution of their parenting and financial issues whilst living in a highly stressful environment.

Changing the locks

  • It is not appropriate to simply change the locks to ensure the other party cannot return to the home.  However once a person has vacated the home it is generally considered reasonable to change the locks if the person vacating has also removed all their belongings and moved out, even if the person who changes the locks is not the legal owner of the property. For example where the wife remains in the home even though the title to the property is registered in the husband’s name.
  • It is preferable to seek legal advice before changing the locks. It is important to also consider whether changing the locks is actually necessary in the circumstances, and whether doing so is only likely to inflame matters.

Intervention orders

  • If family violence is committed by one party against the other, the victim can seek an intervention order by contacting the police or the local Magistrates’ Court.  The intervention order may include a term requiring the other party to leave the home.  To make such an order a Court must be satisfied that it is more likely than not that the order removing the person from the home is necessary to ensure the victim is safe or to protect the victim’s property.
  • An alternative to an intervention order is for a party to obtain an order for sole use and occupation of the family home from either the Federal Circuit Court or Family Court.  Compared to an intervention order, a family law order for sole occupancy are rare, take longer to obtain and are more expensive.

If you are thinking of separating or have separated it is best to get competent legal advice.

If you would like more advice or assistance please contact Robinson Gill so that an appointment with one of our accredited family law specialists can be arranged by telephoning 03 9890 3321 or emailing legal@robinsongill.com.au.

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