A “right of occupancy” refers to a person’s right to live at a particular residence. Such property rights often become an issue when a couple splits and one spouse wishes to reside in the family home at the exclusion of the other.
Property rights: where both parties are on the lease or title
Where a property is jointly owned by a married or de facto couple, both parties have a legal right to live at the premises, unless they have agreed otherwise in writing. The same situation applies where both parties’ names are on a lease over the premises.
In either of these situations, if one partner attempts to exclude their spouse who has a right of occupancy, the excluded spouse may lawfully have the locks cut off or changed so that they can enter the residence.
For one party to lawfully exclude the other:
- There must be an express agreement in place as to who will live at the residence.
- Alternatively, either of the parties must seek a court order.
The Family Court has the power to grant one spouse an order for exclusive occupancy of the family home. In determining whether such an order should be made, the court will consider the circumstances of each party to the relationship:
- whether they have the financial ability to obtain rental accommodation elsewhere,
- whether there has been verbal altercations or physical violence between the parties, and
- what will be in the best interests of the children.
The court may also consider how the family home may be segregated into separate private occupancies, which would allow the parties to co-exist without having to have any contact.
Property rights: where only one party is on the lease or title
Where only one spouse has their name on the title or lease, they will have a sole right of occupancy and may lawfully change the locks or otherwise exclude the other spouse from the home.
However, if the excluded spouse has been paying the mortgage, or has made other financial or non financial contributions to the property, they may have an ‘equitable interest’ in the property at law which entitles them to a right of occupancy.
For this interest to be recognised and confer property rights, the affected party will need to apply to the court for orders. This can be time consuming and expensive.
How to minimise the risk of this situation arising
Its wise to consider how your living arrangements may be affected in the future if you were to separate, divorce or in the event your spouse dies and take steps to protect yourself. A Binding Financial Agreement will enable you to come to an agreement about your property rights and how you would like property and assets to be handled if your relationship were to end.
Being registered on the title as joint tenants will confer both parties to the relationship equal rights of occupancy. In the event that one dies, the property will automatically pass to the other.
Registration as tenants in common, will confer the same occupancy rights to each spouse. However upon the death of one spouse, their share in the property will pass to the person nominated in their will.
Ensuring both names are registered on a lease agreement will confer equal property rights to both spouses.
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