Sole occupation of the family home after separation

Date: Sep 01, 2015
Document Type: Article

It is not uncommon in family law disputes for one party to seek that he/she remain living in the family home, to the exclusion of the other party, while the parties negotiate property settlement. In many cases where there is conflict upon separation, one of the parties will voluntarily leave the family home, when stress gets too much, and will wait out the resolution of the property dispute in an alternative accommodation – either in a rental property or at his/her parents’ or friends’ place. However, at other times one of the parties may try to ‘evict’ the other from the family home against his/her will. Can this be possible to achieve?

If both parties own the property, and there are no restraining orders obtained by one of the parties on the basis of allegations of domestic violence, parties have equal right to live in the home. To ‘evict’ one of the parties upon separation, the other party has to apply to Family Court for what is known as “sole occupation” of the home. Most often, the party seeking sole occupation will apply for it as part of their application for property settlement. The Court will then consider making an interim restraining order, an order that will operate in the period pending the final resolution of the matter and have an effect of allowing the applicant to remain in the family home, to the exclusion of the other party.

When will the Court make an order for sole occupation?

It has been stated in previous cases that, although the Court has a wide discretion in deciding matters regarding sole occupation of a matrimonial home, the Court should not exercise it lightly. The Court will consider every matter on its own unique facts and make an order that it considers proper. Judging by the outcomes of previous cases, Court has considered the following factors to be relevant in determining a matter regarding sole occupation:

  • the conduct of one party which may justify the other party in asking the expulsion from the home of the first party;
  • the means and needs of each party;
  • the needs of the children;
  • the hardship that ‘eviction’ may cause to either party or the children;

For example, in one of the matters, the Court granted sole occupation of the home to the wife, after finding that the husband, who was an alcoholic, had been abusive and violent towards the wife, had left the wife virtually without money and had totally neglected the maintenance of the home. On top of that, the husband's behaviour was found to be adversely affecting the elder child. The wife could not be adequately housed elsewhere and there would be less hardship on the husband if he were the one to be excluded from the home. 

However, as has been established in a number of cases, the Court will not exclude one spouse from the matrimonial home to simply allow the other to live more peacefully in the absence of the first party. To grant sole occupancy to one of the parties, the Court will need to be convinced that it is not ‘reasonable or sensible or practicable’ for the parties to the marriage to live in the same house. In other words, mere convenience is not sufficient -- the Court has to find that the sole occupancy is ‘necessary’ in the context of each particular relationship post separation.

If a person has concerns that, pending final property settlement following separation, the other party may wish to ‘evict’ him or her from the former matrimonial home against his/her wishes, it may be prudent to discuss with a lawyer early in the process all the circumstances of the matter and ascertain the extent of the risk of ‘eviction’ and possible strategies to prevent it.

It needs to be noted that this article was prepared in August 2015 and the law with respect to sole occupation of matrimonial homes discussed in the article may have changed by the time it is read.

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