Family Law: What Are My Rights If I Want To Seperate From my Partner

At the time of separation, couples living in the same place will often disagree about their living arrangements for the immediate future. It is important to know your rights and obligations at this difficult and uncertain time. Can you be kicked out? How can I kick my partner out? Can you change the locks? If you leave – voluntarily or otherwise – do you need to keep paying the mortgage? Questions such as these can all arise and it is in each person’s best interest to know where they stand.

Can you kick your partner out of the house?

Without a court order, no. We often hear stories about one partner threatening the other that should they not leave, or should they return to the home, the police will be called. You cannot be forced to leave the premise at the mere demand of the other party. Obviously, police will deal with the situation as presented but in the absence of safety concerns, breached court orders or illegal activity, they cannot enforce one partner’s removal from the home at the request of the other.

Who gets to stay in the house during separation?

If you want to leave your family home, you can. In most cases, partners who are going to separate reach an agreement about who will leave the home. If they cannot agree, a family law court may be able to make an order that forces one partner to leave.

Can I change the locks after separation?

The answer is yes – technically, you can change the locks at any time. But is it a good idea? If your partner is also a registered owner of the home, then they have the same rights as you. This means they can enter or re-enter the house, reside there if they so desire or change the locks themselves.

I have left the home. Do I have to keep paying the bills?

In usual circumstances, the party who is residing in, and has sole occupancy of, the home will be expected to pay the necessary outgoings. This includes mortgage repayments, rates, utilities and other bills. However, many elements need to be considered including the individual party’s capacity to pay these expenses and who is the primary carer of the children (if any). If you vacate the home and stop contributing to the outgoings, your former partner may possibly have a claim against you for spousal maintenance, in addition to any child support that you may have to pay. You should seek advice early in this regard.

How can I get my partner to leave?

To legally force your partner to leave the home and stay out, you will need to obtain an exclusive occupancy order from the court (pursuant to section 114(1)(f) of the Family Law Act 1975 (Cth)). These orders are usually only made in circumstances involving threats, domestic violence and/or safety concerns for one of the parties or their children.

The period immediately after separation can be a very difficult time for all parties. Keeping a level head and not making threats or acting impulsively when it comes to occupying the family home and paying the associated costs often, in our experience, goes a long way to ensuring a swift and amicable property settlement.

The above is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.

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