Separating from your de facto partner, husband, or wife can be challenging—especially when it comes to deciding on living arrangements.

In most cases, one party moves out of the family home, leaving the other in the residence. However, there are situations where both parties continue living under the same roof after separation.

Living separately under one roof can be emotionally and practically difficult. Emotions are often heightened, and sharing spaces like the kitchen, laundry, and living areas can create ongoing tension and logistical challenges.

You may need to coordinate daily activities, including the use of shared appliances such as the television, washing machine, and kitchen facilities—making an already stressful situation even more complex.

Where domestic or family violence is a concern, it’s important to seek legal assistance. The Court can provide appropriate remedies to ensure safety and stability.

What Can You Do?

If your relationship has broken down but you are still living in the same home, you can seek legal advice to apply for sole occupancy of the residence.

While some may consider changing locks or restricting access, this approach is not recommended. The proper course is to apply to the Court for an order granting exclusive occupancy.

If property settlement proceedings are already underway, an Application in a Proceeding can be filed. If not, you will need to file an Initiating Application seeking both property settlement and interim orders for sole occupancy.

What Does the Court Consider?

In Davis and Davis (1976), the Court outlined key factors when determining sole occupancy applications:

1. The financial means and needs of each party;
2. The needs of any children involved;
3. The level of hardship to either party or the children;
4. Whether one party’s conduct justifies the other seeking exclusive occupancy.

However, wanting a more peaceful living arrangement alone is not enough to guarantee an order.

Additional considerations from Plowman v Plowman (1970) include:

1. Whether either party can obtain suitable alternative accommodation;
2. Availability of funds to secure other housing;
3. The best interests of any children;
4. Ownership of the property;
5. Whether Court orders (such as injunctions) could address behavioral concerns.

This information is general in nature. You should seek legal advice tailored to your specific circumstances.

Need More Information?

If you would like to know more in relation to your property settlement or obtaining sole occupation of your home, contact Dane Thornburgh to arrange a free initial appointment by email at dane@danethornburgh.com.au Dane is a Senior Associate at Quinn Law Group, contributing over 23 years of substantial legal expertise as a Solicitor and previously as a Barrister.

Danes distinguished career spans dispute resolution, litigation, family law and commercial litigation, complemented by a strong background in several related practice areas.

This blending of advocacy and legal knowledge provides clients with significantly lower legal costs, effectively combining a seasoned advocate and an experienced Solicitor in the one practitioner.