A common problem when parties separate is working out who gets to stay in the house until a final property settlement is resolved.
There have been numerous Court decisions on this question over many years.
The basic principle is that each of the parties have the right to continue to occupy the property, unless it can be shown that it is not reasonable or sensible or practicable for them to continue residing together. However, a Court will not lightly make such a finding – it must be convinced that the removal of a partner is necessary, rather than just convenient.
In a case that the husband’s lawyer referred to as “The War of the Roses” Justice Cronin of the Family Court effectively drew a line down the middle of a farming property and prepared a map telling each of the husband and wife where they could go until their property settlement was finalised. Amid counterclaims of violence being perpetrated by each of the spouses against the other, mental instability, apprehended domestic violence orders, police involvement and the husband videotaping the wife’s forays into his “side” of the property, the Court still did not make an order excluding either of the parties from the property.
One might well imagine that where two people hate each other as much as these people did, at least one of them might have thought it desirable to live a bit further away from the other, but it appears not to be the case.
Fortunately, common sense normally prevails and where two people can’t live together anymore, one of them moves out. Particularly where children are involved, the on-going tensions of estranged spouses occupying the same property is rarely conducive to anybody’s best interests being served.
These sorts of problems can rapidly degenerate into expensive and lengthy litigation. If you are in the situation yourself, it is an excellent idea to get practical and clear advice from a lawyer who is an accredited specialist in family law as to your rights, lest you too end up like the characters played by Michael Douglas and Kathleen Turner.