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Can I lock my ex-partner out of our home?

29-Nov-2010   Family Law   By
Who has the legal right to remain living in the jointly owned home? This area of law is known as Right of Occupancy. Before you go and change the locks take care to know the possible consequences. 

Properties are often owned “jointly” by married or de facto partners. Subject to any express written agreement, both parties have a concurrent legal right to occupy the premises.

So can you lock your ex-partner out? The answer is maybe.  You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry to the premises. Accordingly you should seek the assistance of either their expressed consent (not to re-enter) the property or alternatively seek the assistance of a Court.

The Family Courts will entertain applications by parties who seek the exclusive occupancy of the matrimonial home.  The Courts will take the holistic approach that will examine the financial capacity of one party (or the other) to rent a property elsewhere, the arrangements for the care of the children (i.e. who is the primary caregiver) and how a “moving out” would affect the ability of this primary caregiver to continue in this role.

The Court will also consider violence or other conduct between the parties and their ability to self-regulate their behaviour.  The Court will not consider it to be in the best interests that children be constantly exposed to loud, verbal altercations or arguments even in the absence of physical violence.

The Court may consider the physical layout of the premises to see whether or not it is possible to physically isolate a part of the house to continue occupancy but through a separate entrance with little or no common use areas.

Can my de facto partner lock me out if I am not on title?

In this case the husband or the wife has the house in their name and wish to exclude the other party from the house by changing the locks and seeking to exclude them. This situation is more difficult on the part of the person who is not on title (and is seeking to be excluded).  The person on title has the “legal” right to exclusively occupy as owner of that property.

It may be that the other person has a “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or exclusive occupation of that site.

The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses in these circumstances.  Please see factors identified above for consideration the Courts will make in deciding these matters.

What if my partner stops paying the mortgage?

We are often asked whether or not this permits the innocent party to kick them out of the home or alternatively to get an order forcing them to pay.  Again the Courts will consider a holistic approach to the evidence as to the ability of one party to contribute to the joint debts and liabilities of the marriage.

In any event the bank is a independent third party and, in the normal form of mortgage, both parties have a joint and several obligation to pay the mortgage payments.  In the event that one party needs to assume all of the parties until a final determination by the Courts, these additional contributions should be “added back” in any final accounting of the matrimonial property and financial resources of the parties to the relat


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