The concept of exclusive occupation of the matrimonial home often arises in the context of disputes following the breakdown of a marriage. In a recent Family Court decision, the Court examined the principles guiding applications for one party to have exclusive possession of the former matrimonial residence. The power to grant such an injunction is derived from section 114 of the Family Law Act 1975 (Cth), which provides the Court with discretionary authority to make orders it considers “proper.”
This article explores the relevant legal framework, principles, and considerations that underpin the Court’s determination in such cases, shedding light on the balance between fairness, practicality, and the specific circumstances of the parties involved.
In a recent decision the Family Court considered the principles that applied when considering an application for one party to have exclusive occupancy of the former matrimonial home.
The power of the Court to grant an injunction for exclusive use and occupation rests in s 114 of the Family Law Act 1975 (Cth) (“the Act”). It involves the exercise of a discretion, and an order will be made if it is proper to do so.
Section 114 of the Act relevantly provides that:
An interest in property is a right of a proprietary nature, not a mere personal right. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property.
The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are summarised as follows:
(a) The Court may make such an order as it thinks proper.
(b) There are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it.
(c) An injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances.
(d) It would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order.
(e) The Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together.
(f) The matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order.
(g) The test for making an order for exclusive occupation is an objective one.
(h) The question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen.
(i) The Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused and will then consider if it is sensible to expect the parties to remain living in the premises together.
(j) While the decision ought not be made merely on the balance of convenience, in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home.
(k) It should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened.
These principles should properly be treated as guidelines to assist in the exercise of the important discretion given under s 114(1), and that they should not be seen as laying down any fixed list of criteria which must be established for the application to be successful. A judge must exercise his or her own discretion in the matter, informed by the Court’s previous consideration of the issues.
The granting of an injunction for exclusive occupation of the matrimonial home is a significant judicial discretion that must be exercised with caution. Section 114 of the Family Law Act 1975 (Cth) serves as a vital mechanism to address issues of accommodation and conflict in the aftermath of marital breakdowns.
The principles established by the Court emphasize the necessity of compelling circumstances, fairness, and practicality while considering the unique needs and welfare of all parties, including any children. Ultimately, each case hinges on its specific facts, and the overarching question remains whether it is fair, just, and reasonable to grant exclusive occupation to one party in the interests of justice.
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