Family Mediation and Family Home Occupation Post-Separation: What You Need to Know

10 November 2020

When a marriage or de facto relationship breaks down, one of the more challenging questions is around who continues to occupy the family home? There are times where it will make sense for the couple to continue to live under the same roof, albeit separated, for at least a period of time until both parties can get their affairs in order. At other times, such an arrangement is unfeasible and then the couple might need to then seek family mediation and talk to their lawyers.

One of the more common examples of dual occupation being unpractical is when the relationship between the two people has become hostile or violent. The impact of the relationship on the children should need to be considered too, as children are highly sensitive to a breakdown in the relationship between their parents. These are just some of the the circumstances it’s time to get the lawyers and family mediation involved.

As a first option, family mediation will look for a practical and equitable agreement by exploring sensible options that consider the needs of both parties. For example, one person might be able to move in with their parents for a time. Then there will be times that an agreement won’t be reached or family violence has ruled out negotiation. In those circumstances, once family mediation has been ruled out, the lawyers can be called in to apply to the Court for an exclusive occupation order to reside in the matrimonial home exclusively under the Family Law Act 1975 (the Act).
The court will take the following matters into account when deciding on these applications:

  • the interests of any children;
  • the relationship between the parties;
  • the financial position of each party;
  • whether it is practical and financially possible for either party to obtain alternate accommodation;
  • any issues of family violence;
  • alternate options available to the parties, for example, temporarily moving in with parents or moving into an investment property;
  • convenience or hardship to either party of moving out; and,
  • any other matter that the Court considers relevant.

Note: this is only a partial list. The Court is not restricted by the above list and will make whatever order it considers to be appropriate in the circumstances of the case. If the application is successful than the other party will be required to leave without necessarily having alternative arrangements planned.

If you have just separated, and require assistance on this issue, please contact a member of Coleman Greig’s Family Law team today, who would be more than happy to assist you through family mediation and whatever other steps you might need to take.

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