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Sole Use & Occupation of a Matrimonial Home

Who is to have sole use and occupation of the former matrimonial home?

The Law

59.                      The court has the power to make orders pertaining to the sole use and occupation of the matrimonial home pursuant to s 114(1) of the Family Law Act, which provides as follows:

(1)         In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

(b)  an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

60.                      In Davis and Davis (1976) FLC 90-062 at [75,309], the Full Court set out a non-exhaustive list of factors the court should take into account when deciding whether or not to exercise discretion to make such an order:

The criteria for the exercise of the power under sec 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

61.                      In Plowman v Plowman (1970) 16 FLR 447, Carmichael J further illuminated the factors the court is to consider and said as follows:

Among factors which will determine how the discretion is to be exercised are: (a) Can the wife be adequately housed elsewhere? (b) Is the money available, either from the wife's own resources and/or her husband's, to provide that housing? (c) For whom, husband or wife, is it less convenient to have to live away from the matrimonial home? (d) What are the interests of any children of the parties and what would be in their paramount interest? (e) What are the relevant proprietary rights of the spouses? (f) Would a non-molestation order be an appropriate alternative to an order for expulsion? (g) Is there possible use of improper methods either by way of intimidation or fraudulent condonation to prevent the wife from pursuing her rights, if the spouses continue to reside in the one home? (h) The possible injustice of forcing a husband to establish for himself another home, or otherwise accept inferior accommodation without just cause.

62.                      In Jolly and Jolly  (1978) FLC 90-458, Connor J commented [at 77,334]:

It is to be noted that the Full Court did not attempt to summarise all the considerations but merely some of them. Nor did the court decide that more emphasis should be placed on one than another. What has to be considered is all the circumstances listed above together with other matters which might be relevant in a particular case. In a particular case perhaps more emphasis should be placed on one consideration than another or all the others in deciding what is proper in the circumstances of the case remembering, of course, that the decision should not depend merely on ‘the balance of convenience issues’.

Posted in: Derek Legal Blog at 21 July 20

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