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How can I get my partner to move out?

4 March 2019

It is not uncommon when parties separate to still remain living together under the same roof.  There are many reasons for this. So the question often arises as to who can live in the house. It can be one of the most difficult and stressful issues in a separation. So what are the options?

The reasons for continuing to live together “separated under one roof” can be because of financial reasons or convenience… Maybe one of the parties wants to retain the house on a final basis or a party may operate a business from the home. Also, the parties may have children that they still want to remain living with, and not disrupt the children’s living arrangements.

However, living under the same roof can cause many problems when parties separate. This includes the escalation of family and domestic violence, and exposure to the children of acts of domestic violence between their parents.

How to get an ex-spouse to vacate the home

There are 2 legal ways that a spouse can try and have their former partner vacate the home, these are:

  1. If a party experiences domestic violence from their partner, obtaining an ‘ouster Order’ in a Magistrates Court in Queensland pursuant to the Domestic and Family Violence Protection Act 2012 (Qld);
  2. Obtaining a ‘sole use and occupancy Order’ in the Family Court of Australia or Federal Circuit Court of Australia.

Ouster Order

An ouster Order pursuant to the Domestic Violence Act (Qld) can only be obtained, if a party applies for a Protection Order because their partner has committed domestic violence against them.  The “ouster Order” is one of many conditions that the Magistrates Court can impose. The court must consider whether it is necessary and desirable to impose this condition to protect the party applying for the Protection Order. Including, to protect a named person from associated domestic violence or a child from being exposed to domestic violence.

The paramount principle of importance to the court is the principle of safety, protection and well-being of people who fear or experience domestic violence, including children.

Sole Use and Occupancy Order

The Family Law Act provides the Family Court of Australia and Federal Circuit Court of Australia with the power to injunct (i.e. force by order of the court) one party to vacate the home in favour of the other party.

When the court considers making an order for sole use and occupancy, the court must consider whether the property should be occupied by one party only. It matters which of the parties should vacate the property and which party should have exclusive occupation of the property.

Previous case law has held that the matters the court should consider in making such an order are 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.

The above list is not exhaustive and neither are all the conditions necessary to obtain an Order.

If you are considering applying for a Protection Order with an ouster Order condition or applying for a sole use and occupancy order in the Family Court or Federal Circuit Court we can assist you.  You should obtain specialist legal advice before embarking upon any court action.

To speak with one of our experienced family layers, please contact our Brisbane office today to organise a no-obligation initial appointment at a fixed-cost. Call us on (07) 3221 4300 or fill in our online form here.

2019-04-23T22:31:57+10:00

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