What’s an exclusive occupancy order under the Family Law Act, and how can you get one?
Divorced spouses can seek an exclusive occupancy order or a sole occupancy order for their marital house. The spouses must agree on a property settlement before doing so. This may be both practical and convenient. However, it may not always be possible when the parties’ relationship is rocky.
In an exclusive occupancy proceeding, the court will look at certain factors and check whether they should issue the order or not. It takes careful consideration of these factors because the effect of the issuance of the order will exclude a person from their marital home.
The court does not simply issue a exclusive occupancy order because the parties don’t get along. It’s also not given even if they are uncomfortable living together during the separation or if they are undergoing a divorce process. Again, the court will consider certain circumstances before granting the order.
Let’s learn more about these factors and their impact on the court’s decision in issuing a sole occupancy order.
Exclusive Occupancy Order Under Australian Family Law
An exclusive occupancy order permits the Court to determine who should reside in a marital home. According to Section 114 of the Family Law Act (1975), the court can make an injunction order in relation to the use or occupancy of the matrimonial home. These injunctions can restrict the other individual from a specific region around the house.
According to the Family Law Act, a court has the authority to issue an exclusive occupancy order regarding:
- The use or occupation of the marital residence (for a married couple); and
- The parties’ use or occupation of a specific residence. This includes an injunction prohibiting one of them from entering or residing in that residence or the region in which it is located (for a de facto couple).
Court Considerations for an Exclusive Occupancy Order
In a family law case, obtaining an exclusive occupancy order is difficult. Don’t just use this order as a “tactical weapon” for any ongoing marital quarrel. This is because courts will only award an exclusive occupancy order if it is necessary to protect people or property.
To determine whether an exclusive occupation order is “appropriate,” a judge must consider the following factors:
- The parties’ resources and needs;
- The children’s necessities;
- Difficulties (rather than just inconvenience) for either party or children; and
- If applicable, behaviour that justifies one party’s expulsion from the home.
A conflict gives a negative impact on one party or the children. This will often be enough to tip the balance in favour of the applicant for an exclusive occupancy order. Examples of “high conflict” cases are regular abuse, neglect, or family violence. These cases can and may often affect children.
In short, the court will only issue this order if there are extreme and serious circumstances involved. Thus, an application for an exclusive occupancy order must demonstrate that staying in the former marital residence with both parties would be unreasonable.
Exclusive Occupancy Order: Related Case
The case of Merritt & Phillips (2017) involves an exclusive occupancy order. In this case, the wife claimed that the husband had subjected the children to domestic violence and abuse. As a result, the wife was forced to leave the marital home with the children and sought alternate housing.
She also advanced that her weekly duties would be reduced to caring for the children. That is, if she could return to the marital home. For example, one of her children’s schools was within walking distance of the marital house. The husband, on the other hand, had other options for living arrangements.
In the father’s defense, the allegations of family violence were untrue. The father also needed to remain home, as he claimed that his health was deteriorating. In that case, the wife requested an interim property injunction. The sole use and occupation of the marital house until final orders were issued in the case.
The Court’s Ruling
The court considered the following factors in the evaluation of the wife’s request for an exclusive occupancy order:
- “In all likelihood,” the young children had recognised the marital home as “their home;”
- The financial evidence supported the judgement that if the wife occupied the marital home with the children (until a final order is made), she would be able to satisfy her mortgage and outgoings commitments; and
- The possible alternate accommodation of the marital house shed some light on the situation. This proved the husband’s behaviour towards the mother and children to be problematic.
The court then made orders for the husband to vacate the former marital home. The wife received an exclusive occupancy order. In addition, the father can’t access items from the marital home. He was also restrained from entering the marital home without the wife’s written consent.
If a party does not comply with a family law court order, watch this video to know more.
Talk to a Family Law Expert at JB Solicitors
Understanding your rights and obligations under an exclusive occupation order is critical in any case. If you need help with your situation, talk to a family law solicitor for legal advice. An expert in family law can assist you with every need you have in relation to divorce and separation proceedings in Australia.
Our team of solicitors prides on providing just and honest legal advice. This is especially for parents seeking to protect themselves and their children.
Consult with our team of family law experts today.
Last updated : 26 March 2025
