By January 20, 2020 No Comments

One of the most common questions that family lawyers are asked is whether one party can change the locks in order to lock out the other party from the family home. Individuals have the right to live in a particular residence if they have a ‘right of occupancy’. Such property rights come in to dispute when a couple splits and one spouse wishes to reside in the family home at the exclusion of the other.

It is important for parties to know their rights and obligations as to whether they can be kicked out of the family home? As to whether they can change the locks? What will happen if one party voluntarily leaves, do they need to continue paying the mortgage? Following separation these are the main questions which arise when parties separate.

Can my ex-partner kick me out of the family home?

Without a court order in place, one party cannot kick the other party out of the family home. In many matters we hear stories about one partner making threats for the other party to leave, and if they are to return the police will be called. Legally, one party cannot force the other party to leave the premise at the other party’s demand. However, if police are called, they will deal with the situation when they attend the property, unless they have concerns relating to the party’s safety, breach court orders or illegal activity, the police are unable to enforce one party to be removed from the property at the mere request of the other party.

Can I change the locks?

As a registered owner you are at liberty to change the locks of the family home at any time. However, it does not mean that it is a good idea to change the locks, in some circumstances it will exacerbate conflict and make it harder for parties to resolve the issues in the future. If your partner is also a registered owner, they essentially have the same rights as you, meaning that they can also change the locks themselves and re-enter the property as and when they please. If both parties own the property and one party changes the locks, the other party is able to regain access to the property without the other party’s consent.

In circumstances where the property is owned by one party, the owner of the property has the right to change the locks. The party who is not the legal owner of the home, should seek the other party’s consent or provide notice to them with their intention to change the locks at the family home.

In circumstances where the property is being leased, parties must obtain the consent of the landlord before any locks are changed. The landlord cannot unreasonably withhold their consent to you changing the locks. The party who has been provided with approval to change the locks must provide a spare key to the landlord and any other tenants who have their name on the lease, unless there is a safety notice or intervention order which excludes that individual from being provided with a key.

Do you have to pay the mortgage when you have left the family home?

Generally, if one party is residing in the property and has sole occupancy, they will be expected to pay any outgoings related to the property which includes mortgage repayments, rates, utilities, and any other bills related to the property. However, considerations such as that party’s capacity to pay the expenses and who is the primary carer of children will also play a role in relation to this issue. If one party chooses to vacate the family home and they stop contributing to the outgoing expenses, the former partner may have a claim for spousal maintenance in addition to any child support that their former partner may be liable for. It is important to seek advice early in relation to this issue to ensure that you are not liable for any expenses.

How can I get my partner to leave?

In order to legally force your partner to leave the family home to ensure they do not return you will need to obtain an exclusive occupancy order from the court. These orders are only made in circumstances where there are threats, domestic violence or safety concerns for either party or the children.

Family Court Powers

Ultimately the Family Courts have the power to decide who occupies the family home. These orders can be made for the short term or permanently. Any concerns surrounding one parties safety may prohibit the other party from attending the property and therefore the other party would have the right to change the locks and have sole occupancy of the family home.

If you have concerns for your safety, you should contact the police to make a restraining order application or you can ask a lawyer to assist you with an application for a restraining order.

What should you do?

Separation can be a very stressful time. It is important that parties do not make the circumstances surrounding their relationship breakdown worse by creating further tension with the other party. If both parties can remain as amicable as possible, it will assist you in coming to an agreement in the future which result in you in saving legal fees associated with the preparation of the agreement.

Perhaps it is important for parties in these circumstances to ask “should they change the locks” as opposed to “can I change the locks”. Whether you can and should change the locks is largely dependent on your individual circumstances, it is important that you seek legal advice before making any decisions which could impact the course of any property or financial settlement in the future.

There are many obvious benefits to changing the locks such as regaining your privacy, security and knowing that your personal property will be safe within your home. However, it is also important to ensure that you do not create any issues for you in the future so that you and the other party can work amicably together to reach an agreement in relation to your property settlement.

If you are not sure what the best approach is for you, it is always recommended that you seek legal advice. Each situation is different and a lawyer will be able to provide you advice as to what the best option is for you.

– Sarah Gresham – Joss Legal