Who gets to stay in the house once the relationship is over?
Where possible, we generally recommend, upon separation, that one of the parties to a failed relationship secure alternate accommodation.
Of course, it is not always practical for one or both parties to a failed relationship to rent or purchase a new home.
How should you determine who gets to stay in the house? There are several factors that can be considered if an agreement can’t be reached:
• The wishes of the children ought to be taken into account. If one party will have primary care of the children of the relationship, it is generally in the interests of the children that that party remain in the home.
• The financial circumstances of the parties is relevant. It should be considered who has the financial means to pay the mortgage and household expenses, or, alternatively, who has the financial means to finance alternative accommodation.
• In many cases it will be helpful to engage the services of a family dispute resolution practitioner or mediator, who may be able to find a solution that is palatable to both parties.
If one party is behaving unreasonably or refusing to leave the house, some other options are available. Parties may be able to apply for an injunction if the other party is threatening to sell, give away or mortgage the house.
If one party has concerns regarding family violence, abuse, harassment or other criminal activity, then that party may be able to apply to the Courts for an intervention order with a condition that requires the other party to leave the marital home. The Courts may also in some cases grant an order for sole occupation. It is important to seek legal advice from a lawyer who has family law expertise if this is something you wish to consider. At Bambrick Legal we can advise you on the chances of success for such an order and how such an application might proceed.
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