When a couple separates, one of the biggest challenges is deciding who will stay in the family home.
If both parties cannot agree, the court may grant an exclusive occupancy order to allow one person to live in the property while preventing the other from doing so.
These orders are often necessary in cases where conflict, safety concerns, or financial matters make it impossible for both parties to continue living under the same roof.
An exclusive occupancy order does not change property ownership, but it does give one person the legal right to live in the home temporarily or permanently.
The court considers various factors before granting such an order, including the welfare of children, financial situations, and any risk of harm.
If you are separating and unsure whether you can stay in your home, understanding exclusive occupancy orders can help you take the next steps.
What Is an Exclusive Occupancy Order and When Is It Granted?
An exclusive occupancy order is a court order that allows one person to remain in a shared home while legally excluding the other person from living there.
This order is most commonly sought during family law disputes where both parties cannot agree on who should stay in the house.
When Is an Exclusive Occupancy Order Granted?
The court may grant an exclusive occupancy order in situations such as:
- Domestic Violence or Safety Concerns: If one party is experiencing family violence, an order may be granted to protect them and any children involved.
- High Levels of Conflict: If living together is no longer possible due to constant disputes and emotional distress, the court may decide that separation is necessary.
- Children’s Best Interests: If it is in the best interests of the children to remain in a stable environment, the court may order one parent to stay in the home with them.
- Financial Hardship: If one party is financially dependent on the other and has no immediate alternative housing, the court may allow them to stay in the home.
These orders can be granted on an interim (temporary) basis while property matters are being finalised or on a final (permanent) basis if required.
How Do I Apply for an Exclusive Occupancy Order in Australia?
Applying for an exclusive occupancy order involves a legal process that requires strong supporting evidence. Here’s how you can apply:
Step 1: Seek Legal Advice
Before applying, it’s important to consult a family lawyer who can assess your situation and determine whether you have a strong case for exclusive occupancy.
Lawyers can also help you gather the necessary evidence to support your application.
Step 2: File an Application With the Family Court or Federal Circuit Court
To apply, you must file an application with the Federal Circuit and Family Court of Australia (FCFCOA). This application should clearly state:
- Why you are seeking exclusive occupancy.
- Evidence supporting your claim (e.g., financial records, police reports, witness statements).
- How the arrangement would benefit you and/or any children involved.
Step 3: Attend a Court Hearing
Once your application is submitted, the court will schedule a hearing. Both parties will have the opportunity to present their arguments before a judge decides whether to grant the order.
Step 4: Court Decision and Enforcement
If the court grants your application, the order will be legally binding, and your former partner must vacate the property. If they refuse to comply, law enforcement may assist in enforcing the order.
What Factors Do Courts Consider When Granting Exclusive Occupancy?
The court does not grant exclusive occupancy orders lightly. Several key factors are considered to ensure fairness to both parties:
1. Safety and Risk of Harm
The most critical factor is whether there is any risk of harm to either party or the children.
If there is a history of domestic violence, abuse, or threats, the court is more likely to grant an exclusive occupancy order to protect the vulnerable party.
2. Best Interests of the Children
If children are involved, the court prioritises their well-being. The judge will consider:
- Which parent provides the primary care.
- Whether moving out would disrupt the children’s schooling and routine.
- Any emotional distress caused by conflict between parents.
3. Financial Circumstances
The court will assess each party’s financial situation, including:
- Who is paying the mortgage or rent.
- Whether one party has the means to secure alternative accommodation.
- Whether forcing one party to move out would cause undue hardship.
4. Property Ownership and Legal Rights
Owning the home does not automatically mean you have the right to stay in it. The court may grant exclusive occupancy to a non-owner if the circumstances justify it.
5. Alternative Housing Options
If one party can easily find alternative housing, while the other has nowhere else to go, the court may decide in favour of the person with fewer options.
How Long Does an Exclusive Occupancy Order Last, and Can It Be Extended?
How Long Does an Exclusive Occupancy Order Last?
The duration of an exclusive occupancy order depends on the circumstances of the case. It can be:
- Temporary (Interim Orders): These orders last until a final property settlement is reached or until further court review.
- Final Orders: In some cases, exclusive occupancy can be granted indefinitely, particularly if there is a history of domestic violence or if it serves the best interests of the children.
Can an Exclusive Occupancy Order Be Extended?
Yes, an exclusive occupancy order can be extended if necessary. If the circumstances that justified the order continue, you may apply to the court to extend it. For example:
- If a property settlement is delayed.
- If there are ongoing safety concerns.
- If alternative housing is still not available.
If an extension is needed, you will need to provide updated evidence to support your request.
Understanding Your Rights in Property Disputes
An exclusive occupancy order can be a crucial tool in family law disputes, providing stability and security for individuals and families during a difficult transition.
Whether you need protection from a dangerous situation or simply require temporary residence while property matters are settled, the court will consider all relevant factors before making a decision.
If you are considering applying for an exclusive occupancy order, Ipswich Family Lawyers can provide expert legal guidance tailored to your situation.
Contact our team today to discuss your options and take the next step toward securing your living arrangements.
