Separation and the Family Home: Staying, Leaving and Changing the Locks

Deciding whether to stay in the family home after separation is one of the hardest early decisions to make during a separation. In Victoria, there is no legal requirement to leave. This guide explains the pros and cons of staying, when you can change the locks, and what to do if family violence is involved.

Advantages of both parties staying in the family home.

• It is often cheaper for both parties to remain in the home rather than setting up a new house with its associated costs such as rent, bond, furniture, and utlitities. This is particularly so where the person wishing to move out is reliant on Centrelink entitlements or has a modest income or savings.
• Leaving the home can make it more difficult to spend time with the children, particularly if there is conflict between the parties and there are no Court Orders or Parenting Plan regarding parenting arrangements.

• Staying in the home can assist to ensure each party will have the opportunity to continue to care for and spend time with the children.
• There is no legal requirement for one party to leave the matrimonial home following separation. Parties often continue to live separately and apart in the home while finalising property matters and sharing the care of the children.

Disadvantages of both parties staying in the home.

• Remaining in the home following separation may increase conflict between the parties. If the children witness that conflict, it may adversely affect their wellbeing.
• Parties may not agree about who is to pay household expenses such as the mortgage, utilities, and food, particularly where the parties no longer share household income or one party does not have access to it.
• There may not be sufficient space at the home for the parties to reside separately and apart.
• It may be more difficult for the parties to negotiate a resolution of their parenting and financial issues whilst living in a stressful or conflictual environment.

Can I change the locks?

• It may be reasonable for a party to change the locks where the other party has vacated the home and removed their belongings
• The party changing the locks does not need to be the legal owner of the property. It may be sufficient that the party has sole use and occupation of the property while property and parenting matters are resolved.
• It may also be preferable to advise the other party of an intention to change the locks so as not to inflame matters or escalate conflict.

What if there is family violence?

• If family violence is committed by one party against the other, the affected person can seek an intervention order by contacting police or the local Magistrates’ Court. The order may include a condition requiring the other party to leave the home if the Court is satisfied that this is necessary to protect the affected person or their property.
• An alternative is to seek an order for sole use and occupation of the family home from the Federal Circuit and Family Court of Australia. Compared with an intervention order, this type of family law order is rare, usually takes longer to obtain and is more expensive.

If you're thinking of separating or have already separated, speak with one of our experienced family lawyers about your situation. Book a consultation today.

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Duffy & Simon Lawyers servicing Pakenham, Melbourne CBD, Gippsland and beyond for 50 years.

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