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21 July 2020

Who stays in the house when we separate?

It can be a difficult time when neither you nor your ex is willing to move out of the family home after separation.

At least in the short term, it is ideal to remain in the family home if you can. This is because:

  • you won’t have the difficulty of looking for alternative accommodation and arranging to move your personal possessions
  • once you leave the home, it is difficult to regain access if your former spouse refuses to let you enter and, if you do so without their consent, it could be seen as an act of domestic violence and grounds to have a Protection Order made against you
  • if the mortgage is in your name, solely or jointly, and your spouse is living in the home but stops paying the mortgage repayments, you will still be on the hook with the bank, despite also having to pay rent to live elsewhere
  • if you have children and are their primary carer, the family home is a familiar environment for them during an already upsetting and confusing period.

In saying this, we do not generally recommend that spouses live under the same roof once they are separated. More often than not, this leads to conflict and may result in a spouse or the police applying for a Protection Order.

Is nesting a good idea?

Not usually.

‘Nesting’ involves separated spouses living in the house in a week on week off arrangement, while the children live there full time. The idea is that children will have the continuity of coming home to the same place each night, with only the parents being disrupted by moving weekly.

This is not a long term solution. We commonly see it end in situations where, for example, one spouse leaves the house a mess for the other to come home to, children are confused about whether mum and dad are actually separated, or new partners are invited to sleep over in the week a spouse is living there, which can be upsetting and uncomfortable for the other ex spouse.

It is also tiring and disruptive for parents, who are left to find accommodation every second week and generally end up on the couches of friends or family.

How can I make my ex move out?

It can be difficult when you have no ability to pay rent to live elsewhere but your ex is not willing to move out of the family home after separation.

The first step is to talk to your ex and see if you can reach an agreement about who will move out. Think about whether one of you wishes to retain the home, how children will be affected if their primary residence must shift, and who has the financial means to pay for the mortgage or to rent elsewhere. You may wish to engage the services of a family dispute resolution practitioner or mediator to help talk through these issues.

If you have concerns about family violence, the Magistrates Court in Queensland can make a Protection Order that includes a condition that your former partner must leave the home. This can be ordered even where the home is in their sole name. A Protection Order shouldn’t be used for the collateral purpose of forcing your spouse to leave the family home but, if you are fearful for your safety, you should talk to a family lawyer about the prospects of obtaining an Order with this condition. Alternatively, The Federal Circuit and Family Court have the power to order that a party move out of the home.

If you are in a situation where you don’t know whether to stay or leave the home and need assistance in the early stages of separation, please do not hesitate to contact one of our expert family lawyers.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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Justine Woods
Craig Turvey
Special Counsel

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