One of the most difficult times of your relationship can be when it is over and you want your ex to move out of the home that you own together.
The difficulty may arise because your ex refuses to leave for several reasons, it might be that they are paying the mortgage or they have no-where to go, or this behavior is simply a way to control, intimidate and hurt you.
Living with your ex in a situation where there is conflict, where you feel like you are “walking on egg shells” or your children are caught in the middle of the daily fighting between you and your ex is not healthy and for many people not tolerable.
If you are going through a Divorce or Separation and you want your ex to move out of the family home, here are some options available for you:
1. Negotiate – find an accredited Family Law Mediator and ask them to arrange a mediation where you and your ex can discuss in a non-threatening environment the options that may be available for you to find resolution. The Mediator is a trained professional and will determine whether your situation is suitable for mediation in the first instance. Mediators are trained to handle situations where people disagree and where there is a high degree of emotion. If you feel uncomfortable or uncertain about the mediation process, then speak to your Mediator about how to make it a positive experience for you.
2. Get legal advice– speak to a specialist Family Lawyer to get your questions answered and get the right advice for your specific situation. Your Family Lawyer will tell you what your rights are and what you can and can’t do if you want your ex to move out of the home.
3. Go to Court – going to Court is always a last resort. Sometimes, however you may find you have no choice and in those circumstances the Court has the power to make legal Orders to prevent and stop ex’s from living in the family home. These Orders are call “sole-occupation” orders.
The recent case of Merritt & Phillips  FamCA 618 (17 August 2017) is an example where the Court used its discretionary power to make Orders that injuncted the former Husband from living in the home with the former Wife and children.
To get an injunction from the Court is not straight-forward, you need to show not only hardship to you and/or children but also consider the rights of your ex, as they are the joint owner of the home.
The behavior and conduct of your ex is very relevant and although you don’t necessarily have to show that your living conditions are intolerable, you will have to show that it is unreasonable looking at all your circumstances that you and your ex, continue to co-occupy the family home.
Going to Court is always a last resort, and you will need specialised legal advice to assist you.
The information provided herein is not legal advice, but intended as general information. Should you require legal advice please contact us today.
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