In most cases where a married couple or a couple who are in a de facto relationship decide to separate, the normal course of events would see one of them move out of the home they share. They might contact their family lawyers for advice, and In the majority of cases, although the couple might have some disagreements over any future divorce, the agreement to live in separate homes is done amicably.

Unfortunately, there can be a scenario where no such agreement can be made, and despite the couple’s relationship being completely broken, neither of them is prepared to move out and insists that they remain. There can be many reasons for this, and the solution is not always that easy to find.

This stems from the fact that Australian family law does not provide any legal basis for one party to a marriage or de facto relationship insisting that their partner or spouse move out, simply on the basis that the relationship has run its course, and they want them out. Even calling the police, or going to court, on the basis you hate your ex is not going to get you far, and will certainly not result in them being told to leave.

When this is conveyed by family lawyers to their client, the client is often dismayed, but family law in Australia does not include the means for one person throwing another out of their home for the mere reason that they cannot stand the sight of them anymore. Both parties to a divorce have rights and they include property rights pertaining to the home they live in.

A further complication to this whole scenario occurs when the couple has children. Not only might those children have seen their parents’ relationship disintegrate in front of their eyes, but now that they have decided to split, the battle between them might also become more severe. Two people living in the same home, especially when one wants the other out and they refuse, can create a volatile situation with shouting matches, which a child should not have to experience.

Although arguments between parents are not what you want children to have to live with, even this would not be enough for a Family Court to order that one of the parents move out. They would only make an order if it could be proven that the safety of a spouse or partner, or the children were at risk due to potentially violent behaviour by the person insisting they remain in the home.

If this were the case, the abused partner or spouse could request that their family lawyer applies to the family court under Section 144 of the Family Law Act or under the 2012 Domestic and family Protection Act.

Both of these have provisions for a violent or abused spouse or partner to be served an injunction. This would include an order that the person moves out of the matrimonial home. Refusal to do so could see the police visiting the home to enforce the injunction by removing the person forcibly if necessary.

Of course, not all separations see the couple go to war, and thankfully the number where violence or abuse is a factor is small. This means there are scenarios where a couple agree their relationship is over, but also agree to remain living in the home. This can be especially the case if they have children. It can also be done for financial reasons too.

Even though they live in the same home, the couple will be regarded as ‘living apart’ as long as they have separate bedrooms, and live as though they are apart. That would exclude socialising together for example. After 12 months of this arrangement, they could apply for divorce, and it is once the divorce is agreed and settled that one of them would move out.