Who has to move out after separation?

Published 20 Jan 2017

Perhaps one of the most difficult aspects of a relationship breakdown is all the lifestyle changes involved, not the least of which is your living arrangements. Renters can find new, separate houses with relative ease if that's what they want, but when you own your own house with your ex-partner, the situation is more difficult. The splitting of assets such as your marital house can be dealt with through a property settlement or the via the family law court, but you have to decide what happens in the meantime. 

While you have the option to move out yourself, what will you do if you don't want to, and neither does your partner?

Can I force my partner to leave?

If both you and your partner own the house, each of you has equal rights to live in it. This means you are not automatically able to kick your ex out when you separate. If you want to legally force them to leave, you will need to apply to the court for an order that gives you exclusive occupancy rights of the property, which will be considered depending on the grounds for the order and the circumstances of the separation.

In most cases, the order will only be granted where there is domestic violence or a threat to children. Consequently, your best bet is to attempt to come to an arrangement either independently, through mediation or by settling as quickly as possible.

Can we both stay?

When ex-partners decide to remain in the same house after a relationship breakdown, it is called "separation under one roof." This can be a challenging situation, but some couples decide this is the best course of action for them.

According to the Family Court of Australia, separation under one roof requires you to provide extra information to the court before you can finalise your divorce. This is because you will need to give evidence that you have carried out the 12-month separation required in New South Wales. The evidence is often provided through an affidavit which proves that your finances have been divided, you are sleeping separately, share household duties less often and have generally minimised the number of activities you do together.

The affidavit will usually need to be witnessed by a Justice of the Peace or a legal professional. Get in touch with a Parramatta lawyer at Malouf Solicitors for more help with managing your living arrangements after separation. 

Please call us on 02 8833 2000 to speak with a lawyer

I would just like to say thank you to Anthony who assisted my son in his matter. He is a first home buyer and was pressured into signing a contract prior to obtaining legal advice. The contract was certainly was not the normal straight forward type. To be able to obtain the help and assistance he did from Anthony and rescind the offer the next day, was wonderful. We were able to have a stress free Christmas. I am unable to thank him enough for this. My son and our family will be contacting Anthony when we find the next property.
Kim of Sydney

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