Separations and divorces can be extremely challenging times for both spouses. While the hope is that the process can be conducted in an amicable way, there is always a chance that certain aspects can turn into a battleground. One such area of disagreement can be the home itself, and who should be entitled to live in it once a separation has happened.
In this blog, WGC Lawyers helps you understand the rights of both parties when deciding who gets to stay in the house.
Right to Live in Matrimonial Home During Separation
A spouse who has left the marital home during separation is still entitled to their portion of the home if it is included in the divorce settlement. There is often a presumption that one or the other party must leave the house. In fact, under normal circumstances it is prohibited for either spouse to force the other out of the home.
If there are concerns over domestic violence or criminal action, the courts will treat the situation differently. Speak to a trusted divorce lawyer today for legal assistance.
Find a Divorce Lawyer in Cairns for Occupancy Orders
Under Section 113 of the Family Law Act 1975, the court has the power to make injunctions relating to the use and occupancy of the matrimonial home. An injunction is a legal order that prevents someone from engaging in a particular act. An individual may seek an occupancy order through the Family Court or Federal Circuit Court with the help of a divorce attorney.
The court will make its decision based on the following:
- Is there sufficient cause for the property to be occupied by one party?
- Who should leave the property?
- Has the person seeking the injunction made a suitable case for sole occupancy?
The court will consider whether the order is necessary and determine which spouse needs greater access to the home. The following factors will affect this decision:
- The needs of children who are involved in the separation as well as hardship that may be faced by children
- The income and financial situation of each partner and their ability to find alternative accommodation
- The individual conduct of both parties as well as allegations of physical assault and violence
Expert Legal Assistance from a Trusted Family Lawyer Cairns
Since 1972, WGC Lawyers has provided astute, approachable, and sympathetic legal assistance to every client who has walked through our doors. Contact us today for a free consultation with a family lawyer Cairns families can trust. We will provide you with reputable information about your rights during a separation.