Voluntarily leaving the home

There is no hard and fast rule about this. Ideally, you and your partner should discuss the issue as part of your planning to separate. But, of course, separations are not ideal and having a calm, rational discussion about which partner is going to leave the home can be difficult.

Generally, the courts have taken the view (and things must have got pretty unpleasant for this question to end up in court), that the “least inconvenient” option should be taken. For example, if there are children, it may be least inconvenient for the family if the father moved out, and let the mother, if she has been the primary carer of the children, stay in the home until there is a property settlement. This also applies to rented properties.

If the family consists of the parties and one or more children and, say, the mother has been the primary carer of the children, it will usually be more convenient for the other parent to move out – they would have to find accommodation for themselves, whereas the primary carer would need a home for them and the children. If the primary carer is the mother, her income may be a lot less than the father’s, making it more difficult for her to find and pay for rental accommodation.

Again, if there are children, it will normally be more convenient for them to stay in the home until there is a settlement, because their schools and friends will likely be nearby and, in the case of their parent, support services – neighbours, medical and dental professionals.

A party to a relationship leaving the home does not have any adverse effect on their rights to a property settlement and the courts do not adjust settlements depending on whose name the home is in, unless there has been an inheritance which helped to buy the property.

Leaving the home under an Intervention Order

The state Magistrates Courts have the power to include in an Intervention Order, a requirement that one of the parties leaves the home, until there can be a full hearing of the case, which is usually months away. The process is pretty brutal – the police arrive at the home, tell the Respondent to the Order that they are to leave the property. They are given a few minutes to gather up some personal belongings and are then escorted off the premises by the police. Such Orders usually include the children and, because of delays in the court system, made worse by COVID, that can mean the parent not seeing the children (and, of course, the children not seeing them) for months. So, try hard not to have an Intervention Order made against you. An Order requires a degree of family violence, but it doesn’t take much to convince a magistrate to make an Order.

Can both parties stay in the home after separation?

Yes, they can. There needs to be some goodwill to make that work, as well as some rules about, for example, who will clean the house, do the shopping, pay the bills, but it can be done.

So, if possible, sit down with you husband/wife/ partner and try to work out who is going to leave if the relationship breaks down, or will you both stay in the home until there is a settlement. Our helpful Family Law Team at Tonkin Legal Group can help you with these decisions and, where appropriate, refer you to mediation to try to reach an agreement.

Watch our free on-demand webinar on separation

If you want to learn more about how to separate safely from your partner, watch our new, free on-demand webinar “Separating from your partner” which explains the legal, financial and practical implications of leaving your partner.