Family Home Proceedings

Where a person is entitled to occupy a dwelling-house by reason of a beneficial estate, contract, or has home rights in relation to the dwelling-house, the person may apply to court for an order containing any one or more of the following provisions. If the agreement to marry is terminated, no application may be made by reference to the agreement after the end of three years from the day on which it is terminated.

An order may enforce the applicant’s entitlement to remain in occupation as against the other party. It may require the respondent to permit the applicant to enter the dwelling-house; may require the respondent to permit the applicant to have peaceful use and enjoyment of the dwelling-house or part of it; it may regulate the occupation of the dwelling-house by either or both parties.

If the respondent has ownership rights, it may prohibit, restrict, or suspend the exercise of those rights to occupy the dwelling-house. If the respondent has home rights in relation to the dwelling-house and the applicant is the other spouse, it may restrict or terminate those rights. It may require the respondent to leave the dwelling-house or part of it.

It may provide for the respondent to remove from the dwelling-house any personal effects or furniture of a kind specified. It may exclude the respondent from a defined area in which the dwelling-house or other defined area or premises. It may restrain the respondent from disposing of any interest he has in the dwelling-house. If the applicant has home rights and the respondent is the other spouse, an order made during the marriage may provide that those rights are not brought to an end by the death of the other spouse or termination of marriage.

In determining whether to exercise its powers above and if so in what manner, the court shall have regard to all the circumstances, including the housing needs and resources of each of the parties and any relevant child; the financial resources of each of the parties; the likely effect of any order or decision of the court not to exercise its powers, on the health, safety, and well-being of the parties and of any child; and the conduct of the parties in relation to each other and otherwise.

If the court is of the view that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of a respondent if an order containing one of the provisions above is not made, the court shall make the order unless it appears that the respondent and other relevant child are likely to suffer significant harm if the order is made; and the harm likely to be suffered by the respondent or child in that event is as great as, or greater than the harm attributable to conduct of the respondent, which is likely to be suffered by the applicant or child if the order is not made.

The court may exercise its powers in relation to the rights continuing post-death and termination in any case where it considers in all the circumstances it is just and reasonable to do so. If the non-owning spouse’s rights are a charge on the estate of the owning spouse, any order above is to have effect except in so far as a contrary intention appears as against persons deriving title from that person or from his trustees.

If one former spouse is entitled to occupy a dwelling-house by virtue of the beneficial estate or contract or statutory right of occupation, and the other former spouse is not so entitled, and the dwelling-house was at any time the matrimonial home or so intended to be their matrimonial home following provisions apply.

The former spouse not so entitled may apply to court for an order against the other former spouse. If the first spouse is in occupation, an order must contain provision giving the first spouse a right not to be evicted or excluded from the dwelling-house or any part of it by the latter spouse for the period specified and prohibiting the latter spouse from evicting or excluding the first spouse during that period.

If the first spouse is not in occupation, an order must contain provision giving the first spouse the right to enter the dwelling-house and requiring the second spouse to permit the exercise of the right.

An order under this provision may require the second spouse to permit the first spouse to have peaceful use and enjoyment of the dwelling-house or part of it, regulate occupation of the dwelling-house by either or both spouses; prohibit, suspend, or restrict the exercise of a right to occupy the dwelling-house; require the respondent to leave the dwelling-house; provide for the respondent to remove personal effects and furniture; exclude the respondent from a defined area, restrain the respondent from disposing of any interest in the dwelling-house.

In deciding whether to exercise the powers above, the court is to have regard to all the circumstances, including the housing needs and resources of each party and of any relevant child; financial resources of each party; likely effect of the order on the health, safety, and well-being of the parties and of the child; the conduct of the parties in relation to each other and otherwise; the length of time that has elapsed since the parties ceased to live together; the length of time that has elapsed since the marriage was dissolved; the existence of any pending proceedings between the parties seeking property adjustment orders or claiming legal or beneficial interest in the house.

In deciding whether to exercise powers, the court shall have regard to all the circumstances and the matters mentioned above.

If the court decides to make an order and it appears that the order does not include the provision above, and the applicant or any relevant child is likely to suffer significant harm attributable to the conduct of the respondent, the court shall include the above provisions in the order unless it appears that the respondent or relevant child is likely to suffer significantly greater harm if the provision is included or the harm likely to be suffered by the respondent or child in that event is as great as or greater than the harm attributable to the conduct of the respondent, which is likely to be suffered by the applicant if the provision is not included.

Without prejudice, the rights which may arise by virtue of an equitable estate, a former spouse who has only such an estate is to be treated for the purpose of determining whether he is eligible as not being entitled to occupy the house by virtue of that estate.

There are similar provisions in respect of cohabitees and former cohabitees.

Where neither spouse is entitled to occupy the property, either may apply to court for a following order. Requiring the respondent to permit the applicant to enter the dwelling-house; requiring the respondent to permit the applicant to have peaceful use and enjoyment; regulating occupation; requiring the respondent to leave; requiring the respondent to remove furniture and fittings; excluding the respondent from a defined area.

The above provisions apply where neither spouse has an interest in the property, but one or the other occupies the property. There are equivalent provisions for cohabiting couples.