Who gets sole occupation of the home after separation?

A typical issue when a relationship ends is who will continue to reside in the matrimonial home and who will vacate. If parties are unable to reach an amicable agreement, they may go before the Family Law Court to determine who will receive sole occupation, in the event there is no intervention order proceeding.


The Federal Circuit and Family Court of Australia has recently heard the case of Sarto & Sarto, in which both husband and wife wanted sole occupation of the former family home.

In this case, the wife who was the sole registered owner of the property, vacated the home after separating from the husband. The wife later sought an exclusive occupation order to resume living in the home in which the husband continued to live in after separation. The husband then sought a sole occupation order. This is never a nice battle.

While the husband alleged to have contributed to the purchase of the property, he was unable to show any specific evidence that proved so. The wife, who refuted this claim, alleged that the purchase was made by her.

The Magistrates’ Court of Western Australia dismissed both applications, and on appeal Justice Austin found the magistrate applied incorrect principles when approaching the parties’ competing applications. Additionally, the magistrate did not attempt to resolve the factual conflict of who contributed to the purchase of the property.

Justice Austin at [24] discussed how the magistrate wrongly assumed the husband had some inchoate interest in the property merely because it was obtained during the marriage. While the magistrate refuted the husband’s injunction, the wife’s orders were also refuted as the magistrate decided that no order was necessary.

The Full Court of the Family Court referred to matters which should be considered by any Court when deciding whether to give a spouse exclusive use or occupation of the matrimonial home in Davis and Davis (1976) FLC [90]-062. There it said (at p. 73,309):

“The criteria for the exercise of the power under s 114(1) are simply that the court may make such order as it thinks proper. The matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.”

The only way the husband could have remained in the home was by ‘securing an injunction to restrain the wife from exercising the rights which attend her legal title’ at [20].

Consequently, the husband was unable to show it was ‘proper’ to grant this injunction and subsequently deprive the wife of her legal entitlement of possession. Therefore, an order was made for the husband to vacate the property immediately.

If you need assistance from a Family Law Specialist Lawyer, please contact our team on (03) 9995 9155 for a no obligation discussion about your