How To Kick Your Partner Out Of The House

How To Kick Your Partner Out Of The House

How To Kick Your Partner Out Of The House

Find out more about who gets to live in your home after you get divorced, what legal steps you can take to kick your partner out, as well as your financial responsibilities post-separation.

If you have recently divorced and want to stay in your home, but your former spouse won’t leave, what are your rights and obligations? Things can get complicated during a separation, particularly if you both want to stay in the marital home. Let’s take a closer look.

Who Gets To Stay In The House During Separation?

When a marriage breaks down, deciding who gets to stay in the matrimonial home can be stressful. A divorce can be a very tense and emotional time for both parties, and sharing the same space is not ideal or even feasible in most circumstances. Creating a physical distance can help make the process of separation easier and encourage both parties to move forward with their independent lives.

Conversely, after deciding to separate, ex-partners don’t need to stop living together in the family home. Some couples may choose to live separated under the same roof for a while. Not only is it a financially viable option, but it can also help children to adjust to the divorce during the transition period and enable both parents to continue to spend time with the children. This may not work for most couples, as many relationship breakdowns may not be amicable, and creating space can help everyone move forward.

Deciding who stays in the home is not easy, as both parties are legally entitled to remain in the house. Regardless of who owns the home, one party can not kick the other out unless there are safety concerns or domestic violence issues. In most cases, one party will decide to leave to keep the peace. The only way to be forced out of the house is if there is a court order.

If children are involved, it is more likely that they will stay in the family home, as it can help them during the transition period, whilst remaining in a familiar space with the same routine, school and neighbourhood etc.

Regardless of who moves out, it does not change who will keep the house in the financial settlement. As all of your matrimonial assets, including the family home, will be valued and distributed upon finalisation of your settlement of the marital assets, in many cases, it will be a 50:50 split. It is advisable to remove personal belongings out of the house as it may be difficult to retain possession if they remain in the matrimonial home after you move out.

Can You Change The Locks?

After one partner moves from the family home, you may want to change the locks to prevent them from returning or having access to the house. Separation is a stressful time, and wanting to feel safe in your home is understandable and changing the locks can help achieve that. But keep in mind that whoever has legal ownership of the house is entitled to enter the property, regardless of whether they live there. Unless you have orders that prevent entry without your consent, they are allowed to reenter the home.

If neither party owns the property, the landlord will need to consent before changing the locks.

What Are Your Financial Responsibilities If You Have Left The House?

The party who resides in the home will generally be responsible for the bills and mortgage repayments. But depending on the individual circumstances, if that person is the children’s primary caregiver or does not have the capacity to earn, they may be entitled to spousal maintenance or support payments for their children.

Spousal Maintenance

The Family Law Act states, if one party cannot support themselves financially after separation, then their ex-partner can be held financially responsible if they have the capacity to do so. If there is a substantial difference in the incomes, the court will calculate how much is to be paid and will consider the following factors:

  • Age
  • Health
  • Capacity to find work
  • Income and financial resources
  • Primary carer for children

Maintenance is generally only payable for a limited period after the separation, usually, once the applicant can support themselves financially.

If you were in a de facto relationship, you are entitled to spousal maintenance and must apply within two years from the separation date.

Seek legal advice from an experienced family lawyer as they are familiar with all aspects of divorce, property settlement and parenting orders.

Child Support

The child support scheme ensures that children receive an appropriate level of financial support from separated parents.

When couples separate, the wellbeing of the children is paramount. There are laws in place to ensure that a child support arrangement will be calculated to suit your financial situation. There are various agreements, and most work with a formula that will calculate the payment, considering income and amount of time spent caring for children. An application for support must be made to the Department of Human Services, who will conduct the assessment to determine how much the parent is obliged to pay.

You should obtain legal advice from one of the numerous legal services available in your state. They are familiar with the family court proceedings and all aspects of family law.

Legal Steps To Kick Your Former Spouse Out Of The House?

Finalising a property settlement quickly after a divorce is crucial as it is a vital step in moving forward and can help your transition into a new independent life.

Unfortunately, the process takes some time. The interim period from separation to financial settlement can be tricky to manage, mainly if a former husband refuses to move out of the family home. Noone can be forced to leave the marital home just because someone may wish it. It is up to couples to try to come to an agreement between themselves about who should continue living in the house after separation. In most cases, one party will leave the house to avoid living in a stressful environment.

Under the Family Law Act, court orders can prevent someone from staying in or accessing the marital home during separation. They are called exclusive occupancy orders and are only issued under exceptional circumstances where there is family violence, threats or house modifications due to a disability.

Occupancy Order

An exclusive occupation order will need to be sought from the Family Court or Federal Circuit court in violence cases. The court will take into consideration several factors:

  • The needs of the children
  • Hardship to either party
  • Personal conduct
  • Physical assault or violence
  • The means and needs of both parties, financial resources, availability of alternative accommodation, use of the home for business needs

The family law court will determine if the order is necessary to keep someone safe from harm or only for convenience. In cases where children are involved and threatened, it is more likely that a court will grant the application.

If granted, the order will mean that the former spouse will have to move and not access the property during the separation. The other party can live in the home until the property has been divided in the financial settlement.

Family Violence Order

If a party fears that they will continue to be a victim of physical assault, stalking, intimidation, making threats or harassment, they can apply for a family violence order.

The court order will ensure that as well as removing the individual from the family home, they will not be allowed to contact the protected person except through their lawyer or be permitted to be within a certain distance from their residence, work or school.

Family violence orders are governed under state and territory laws and subsequently have different titles depending on which state of Australia you reside in.

  • Apprehended Domestic Violence Order – NSW
  • Intervention Order – SA & VIC
  • Domestic Violence Order – QLD, ACT & NT
  • Violence Restraining Order – WA
  • Family Violence Order – TAS

Anyone who fears abuse or violence should seek advice as soon as possible.

Summary

When a relationship breaks down, deciding who gets to stay in the matrimonial home can be difficult. A divorce can be a very tense and emotional time for separated couples, and sharing the same space is not ideal or even feasible in most circumstances. Regardless of who owns the property, one person can not kick the other out unless there are safety concerns or a history of domestic violence.

Under the Family Law Act, court orders can prevent someone from accessing the marital home during separation. They are called exclusive occupancy orders and are only issued under exceptional circumstances where there is family violence, threats or house modifications due to a disability.

Regardless of who moves out, it does not change who will keep the house in the financial settlement.

The party who resides in the home will generally be responsible for the bills and mortgage repayments. But depending on the individual circumstances, if that person is the children’s primary caregiver or does not have the capacity to earn, they may be entitled to spousal maintenance or child support payments.

The good news is that your property issues are only temporary. Once your financial documents and property settlement has been approved, you can move forward without worrying about your former partner coming to your home.

If you are unsure, you should seek legal advice from an experienced family lawyer as they are familiar with all aspects of divorce and property settlement.

FAQs

1. Who Gets To Live In The House During Separation?

Answer: It is not easy to come to an agreement about who gets to stay in the marital home, as both parties are legally entitled to live at the property. Regardless of who owns the home, one party can not kick the other out unless there are concerns for safety or a history of family violence.

Separated couples don’t need to stop living together in the family home. Some couples may choose to live separated under the same roof for a while. Not only is it a financially viable option, but it can also help children to adjust to the divorce during the transition period and enable both parents to continue to spend time with the children.

2. Should You Move Out During Separation?

Answer: A divorce can be a very tense and emotional time for both parties, and sharing the same space is not ideal or even feasible in most circumstances. Creating a physical distance can help make the process of separation easier and encourage both parties to move forward with their independent lives.

It can get a little more complicated when children are involved, especially regarding child custody and temporary orders.

If you are unsure, you should seek legal advice from an experienced family lawyer as they are familiar with all aspects of divorce and parenting orders.

3. What Do You Do When Your Spouse Won’t Move Out?

Answer: The only way to be forced to leave the marital home is if a court order is issued under exceptional circumstances with violence, threats, or house modifications due to a disability.

If your relationship is civil, it is up to couples to try to come to an agreement between themselves about who should continue living in the house after separation. In most cases, one party will decide to leave the house to avoid living in a stressful environment.

Focus on finalising your property settlement quickly after your divorce, as it is a crucial step in moving forward and can help your transition into a new independent life.

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