NSW Is my dad legally obligated to let my mother back into our home after a separation?

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boaoakrondry

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4 December 2020
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I'm currently a son, dealing with a separation of my mother and father. This is not a divorce, but rather my dad deciding he wanted a separation. I want to know what is legally correct, and if my father is not breaking any laws.

My father and mother both owned a property, with both of their names to the house. My dad told my mother that if she left, he would pay her $250 a week. She left shortly after, found a new place to rent and my dad payed my mother $250 a week.

My mother is now living in a other property for over six months, and now she has no work and no money to pay the bills (This money was spent on excessive alcohol abuse). She wants to move back into the main house with my father. However, by force my dad is not letting her back in.

Is my dad legally obligated to let her back into the home because she has her name under the house?

Any help would be appreciated, thanks.
 

Atticus

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6 February 2019
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Is my dad legally obligated to let her back into the home because she has her name under the house?
Under the circumstances, no... Very basically.

1) Legally they are both owners

2) Having your name on the title doesn't automatically give that person a right to occupy or even enter uninvited

3)They have separated (by agreement) & your dad has remained in the home. That is his residence & your mum should not enter uninvited, as he shouldn't enter her residence uninvited.

4) If the separation is to be permanent, your mum has a right in law to a share of the house if it's sold, or that your dad 'buy out' her interest in it & have the title changed to his name only, or the other way around if your mum wanted to buy out his share & move back in.
 

Rod

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2) Having your name on the title doesn't automatically give that person a right to occupy or even enter uninvited

I say Yes.

Owners have rights and often it depends on whether a lease or license exists whereby the co-owner has assigned away their rights. It may well be that the agreement for $250 p/wk week can be terminated on notice and she can move back in.

Failing that, if rents in the area are say $800/wk, it may well be she can ask for $400/wk rent from your father.

Your father has limited rights to stop the mother moving in. Whether she stays is another issue and if she is alcoholic and abusive then there are alternative ways of forcing her out.
 

Atticus

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@boaoakrondry First of all, NO your father is not breaking any law by refusing to have her move back in, which was the crux of your question
It may well be that the agreement for $250 p/wk week can be terminated on notice
Possibly, but that won’t alter the fact that they are a couple that have separated from a domestic relationship.
Failing that, if rents in the area are say $800/wk, it may well be she can ask for $400/wk rent from your father.
Of course, she can ask, he can refuse. She would have the option of applying for spousal maintenance pending a final settlement order
Your father has limited rights to stop the mother moving in.
If she was to turn up unannounced on the doorstep & refused to leave after being refused entry, the police may be called. They will ask who is living there… They will then tell them both it’s a family law issue & ask mum to leave. A scene may see her being lumbered with a restraining order as well & escorted away.... (happens regularly for men)

@Rod Many of your colleagues recommend that the occupying party remaining in the home change the locks to prevent the other spouse from returning.

I doubt there are too many lawyers who would recommend their clients should return to a former matrimonial home after separation, even when the remaining spouse doesn’t want them there, & I’m fairly confident that would be frowned upon by police, the family court & family violence advocates .... for good reason
 

Rod

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The question was asked from a legal perspective and was quite narrow in scope and I gave my answer accordingly. BTW, I didn't, and don't recommend that course of action. I also note Victoria's laws on this issue are slightly different to NSW and I'm not familiar with NSW law on co-ownership.

Some couples reach agreement and separate successfully under the same roof, many can't. I do not know which option is best here. Is the father a bully and unreasonable and abusive? If so, what gives him the right to exclude a co-owner from their own property?

Atticus raises very good points though about how other laws come into play if certain other events occur. Police can get involved because they have responsibility for keeping the peace.

Just because someone changes locks, the change does not alter property rights. It is merely a practical response to a relationship issue.
 

Atticus

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I also note Victoria's laws on this issue are slightly different to NSW and I'm not familiar with NSW law on co-ownership.
I don’t believe state specific property law comes into this type scenario …. Relationship breakdowns resulting in a contested property fall under family law (federal… unless there is some peculiar circumstance at play) That’s even regardless of whose name is or isn’t on a property title

It’s widely accepted that when a couple separate, (without a court order for sole occupancy), the remaining occupying spouse shouldn’t be turfed out by the other at any available opportunity simply because they have a real or financial interest in the place…. These things need to be finalised by property settlement (consent or final order of the court)

A remaining occupying spouse has every right to refuse the estranged spouse from moving back in or even entering without invitation, & police will enforce that right to keep the peace
 

Rod

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A remaining occupying spouse has every right to refuse the estranged spouse from moving back in

Umm, no they don't.

I don’t believe state specific property law comes into this type scenario

It does, and especially when there is no action before a Federal Court.
 

Atticus

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A remaining occupying spouse has every right to refuse the estranged spouse from moving back in
Umm, no they don't.

In the real world? of course they can & do! …. Plenty of police & legislative powers to remove an estranged spouse that won’t leave after being refused entry, peaceful protest, name on title or not. Happens every day.
So, you’ve got my interest LOL … if an occupying spouse has NO right of refusal to an estranged ex-spouse from moving back in if they want, how long does this revolving door carry on for?

I don’t believe state specific property law comes into this type scenario …. Relationship breakdowns resulting in a contested property fall under family law
It does, and especially when there is no action before a Federal Court.

Maybe I’ve misunderstood you’re point, but property settlement after the breakdown of a marriage falls under the commonwealth family law act & has done since around 1975 …. The states even deferred de facto property settlement powers to the commonwealth way back in 2009 ?
 

Rod

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Maybe I’ve misunderstood you’re point,

It appears you have.

Private ownership of land is governed by State laws (ignoring equitable claims for this situation). Cth law in family relationships affecting property rights only kicks AFTER a Federal Court makes orders. There are no Cth Court orders in this situation so property rights are still governed by State law.

Police are often used to end the revolving door scenario using their 'keeping the peace powers', or more commonly intervention orders.

Plenty of police & legislative powers to remove an estranged spouse that won’t leave after being refused entry,

I agree and said that. What is being disputed is whether a spouse has a RIGHT TO PREVENT ENTRY. They do not.
 

Atticus

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Cth law in family relationships affecting property rights only kicks AFTER a Federal Court makes orders. There are no Cth Court orders in this situation so property rights are still governed by State law.
Agreed …. But unless the OP’s mum turns up at dad’s door with an occupancy order, (from any court) there is nothing compelling him to accept her back or him to leave.

Being a relationship breakdown (as opposed to co-owners not in a relationship) filing for property orders would be under the provisions of the commonwealth family law act, not state laws, & I dare say most lawyers would file as such even for an occupancy order… So still struggling to see how state property laws would be a better remedy for mum in this scenario or even be relevant TBH.

Police are often used to end the revolving door scenario using their 'keeping the peace powers', or more commonly intervention orders.
Which is the point I made earlier …. Police will enforce the occupiers wishes & this would likely happen on the very FIRST occasion if the estranged spouse didn’t leave after being refused entry

What is being disputed is whether a spouse has a RIGHT TO PREVENT ENTRY. They do not.

Well to be accurate the OP's question involves more than just his mums wishes to enter. She wants to move back in contrary to dads wishes …. If we are going to get very specific.... If by right, you mean a *statutory* right? ... then you may be correct…. Bit of a moot point in relationship breakdowns like this though because in the real world, it happens every day & if police get involved, which ultimately, they will if there is a standoff, they will uphold the occupiers right (wishes if you prefer) to refuse entry & for that spouse to move on.... Even if there is no breach of peace…. I’ve yet to hear of a cop at a call out in this type scenario being persuaded by the argument that as there is nothing in the statutes that says the occupier has no actual legislated right to prevent entry & occupation in a case like this that they will therefore allow it.... Possible exception being entry for a limited time under police supervision to allow an estranged spouse to collect personal items.
 
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