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After separation, who should move out? – Divorce


After separation, who should move out of the marital
home? One of the crucial factors in approving a divorce application
is if both couples have lived separate lives after breaking up.
When couples separate and want a divorce, they will have to follow
eligibility requirements. Here are the following requirements:

  • At least one parent must have been born in Australia or have
    become an Australian citizen

  • An Australian citizen by grant of Australian citizenship

  • Are lawfully residing in Australia and intending to stay in

  • Must have been living in Australia for at least the last 12

  • The relationship has irretrievably broken down with no chance
    of reconciliation

  • A separation period of at least 12 months

  • Have decided to live separately after separation for at least
    12 months

Deciding who will leave the marital home is a difficult hurdle
for separated couples. There is no clear law as to which ex-partner
or ex-spouse should leave the family home. One cannot simply kick
the other one out of the marital home by force. This article will
discuss the topic ‘after separation, who should move

Sole Occupation Order and the Family Law Act

According to Section 114 of the Family Law Act 1975, the Federal Circuit Court
may make a sole occupation order for a parent residing in a marital home.
A sole occupation order under the Family Law Act allows one party
or parent to rightfully own the family home without the other
party/parent. However, the court will only issue a sole occupancy
order if there is evidence or risk of family or domestic violence
within the marital home.

But what if there is no evidence or risk of family or domestic
violence in the family home? Can a spouse still get a sole
occupation order? No. Local authorities and family law courts will
not make a sole occupation order if there are no safety concerns.
They won’t also make the order if there is no criminal activity
involved nor will they decide to force a spouse out of the marital

Separation Who Should Move Out: Case Example

In the case of Zegar and Zegar (2015), which is related to
our topic ‘after separation, who should move out’, Ms Zegar
wanted an interim sole occupation order for the family home because
she was a victim of family or domestic violence. The local court
then heard Ms Zegar’s plea for an apprehended domestic violence order (ADVO) but
the local court rejected the plea.

However, the family court wanted to award an ADVO and a sole
occupation order to Ms Zegar. Ms Zegar told the family court that
Mr Zegar had numerous residences under his name. On the other hand,
she claimed that all she has is the marital home. The court ruled
that Ms Zegar will stay in the marital home with her 15-year-old
daughter. Meanwhile, Mr Zegar was prohibited from entering the
family home.

Separated but Living in the Same Home

In some family law cases of ‘after separation, who should
move out?’, separated couples still live under one roof. Indeed, this is a confusing setup,
but courts will legally allow separation under one roof. Here are
some reasons for separated couples to continue living together in
an apartment or the family home:

  • There is a rising cost of living, hence the separated couple
    can save more money by living together

  • Both couples decided that they will set boundaries and sleep in
    different rooms

  • Both couples decided that they need to take care of their
    child/children together

  • The other party doesn’t have anywhere to go to

  • Both couples will attempt to reconcile

However, couples can still prove their separation even if they
are still living together. Regardless of the reasons above, some
couples are adamant about truly proving the separation. Courts will
also consider the couple’s separation as long as they have:

  • Stopped sleeping together in one bedroom

  • Removed their wedding rings

  • Stopped going to social gatherings together

  • Announced their separation to their family members and circle
    of friends

  • Stopped offering household chores for each other

  • Established financial boundaries and started spending only for

  • Established their personal belongings

  • Decided in using separate bank accounts

  • Stopped engaging in sexual activity

After Separation Who Should Move Out: Factors to Consider

1. Family Violence

Domestic violence is one common reason for
partners separating and wanting to live separately. Victims may
find themselves in a bind during separation because of their
safety. Domestic violence victims may reach out to their local
authorities and lawyers if they are at risk of family violence.

Getting an ADVO can make the separation and divorce process
smoother if domestic violence is involved. An ADVO basically
protects a domestic violence victim from the victim’s
perpetrator. Family courts will easily grant an ADVO especially if
there are children involved.

3. Parenting Arrangements and Issues

It makes it harder for couples to live apart amicably when they
already have children in their marital homes. So, during
separation, who should move out if there are children in the
marital home? Typically, separated parents will work out parenting plans like:

  • Who will the child live with for the moment?

  • When and where will child changeovers take place?

  • How will the child spend time with each parent?

  • How will parents work out child support payments?

If both parents agree to their parenting plans, they may present
their plan to the court. The court will then turn it into a legally
binding court order so both parties will comply with it. If parents
disagree, the separated couple will have to go through a court
hearing and the judge will decide on the final parenting plan.

4. Property Settlement

During separation, who gets to move out if property settlement is involved? Property
settlement allows separating or divorcing couples to split their
finances, assets, and marital home. Both parties must ensure that
the division is fair and equitable for each while considering each
parent’s future needs. Conducting early property settlement may
make it easier for couples to decide on who moves out.

Both parties to a marriage have rights to certain assets upon
marriage. Moreover, couples may also acquire more assets such as
joint bank accounts, pensions, and even a marital home as their
marriage continues. A former partner doesn’t have a legal
right to the marital home since they both own it with their

5. Spousal Maintenance

During separation, who should move out if the other party needs
spousal maintenance? The partner who has a
higher earning capacity and potential has the duty and obligation
to provide spousal maintenance after divorce. Courts will not leave
out parents who are unable to provide financial support for
themselves after a divorce. However, the lower-earning parent must
prove that they are unable to support themselves for reasons such

  • Having a mental and physical disability that prevents them from
    securing a reasonable income and financial situation

  • Inability to secure good employment due to lack of work

  • Being the primary carer of the child, hence having no time to
    secure employment.

Why It’s Important To Seek Advice Immediately From Family

“After separation, who should move out?”. Some couples
may ask this question themselves if they are confused about who
gets to stay in the marital home. Hence, these couples may fall
into dispute and end up with a mountain of legal matters on their
hands. The best way for couples to decide on who gets to move out
is to discuss their matters with a family lawyer regarding the

  • Whether the couple is renting or currently owning the home

  • If there are outstanding mortgages if the home is bought

  • Regardless of whether the ex-spouse who still resides there
    pays “rent” to the other party

  • What happens if one ex-spouse is not paying bills or
    contributing to the mortgage payments

  • If spousal maintenance is needed and if it will affect property
    settlement procedures

  • If both ex-spouses decide to sell the house and split the

  • How a spouse moving out will affect their ability to commute to
    their work

  • Which spouse is in a better way to pay home expenses

  • If a spouse that decides to move out can run to their family
    for support

JB Solicitors can help disputed couples decide
on who gets to stay in their marital home. With our mediation services, couples can reach an
agreement without risking their financial position and parenting
matters. We have
fixed fees
for people who want to avail of our legal

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.


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