How Your Family Lawyer Can Help You If Your Partner Or Spouse Rejects Your Request For Them To Leave Your Home
For most family lawyers, the situation where a client comes to ask for them to represent them concerning divorce is a common one. Normally at this point, either their client or their client’s ex-partner or spouse has moved out of the matrimonial home, and their task is to ensure that the divorce agreement reached is a fair one for their client with respect to their children and their property.
However, not all divorces follow that pattern, and a family lawyer can have a situation whereby their client has asked, or even demanded, that their partner or spouse move out of their home, and they have refused. There can be many reasons for that refusal, and one which is front, and centre is that they have no legal obligation to do so.
Regardless of how fractious the relationship might now be, and no matter how much one party wants the other to leave, the fact that legally they each have as much entitlement to live in a home they jointly own as the other then no one is obligated by law to leave that home.
This can lead to an escalation of animosity, which family lawyers will advise their clients to try and avoid. In fact, most family lawyers, instead of having to deal with a client at war with an ex in relation to wanting them to leave, have an altogether different set of circumstances to deal with.
These are where the couple in question agree that, whilst they intend to divorce until the final agreement is reached they will both remain in the home. Two main reasons for this tend to be first, that they have children and want to avoid as much upset to them as possible. The second is financial reasons where they both agree that financially it makes sense for them to remain living under one roof.
In terms of their divorce, although they might live under one roof, they must have separate bedrooms and live as though they are apart. if they do so, then after 12 months they can apply for their divorce to be authorised by the Family Court assuming they have an agreement between them on matters such as arrangements for their children, and their respective property settlements.
Unfortunately, not all divorcing couples are able to split as amicably as we have just described. As we mentioned above a huge bone of contention is the home, who remains and lives there, and more specifically, one of them refusing to move out. In most scenarios, neither the court nor the police will take any action no matter how strongly one of the two individuals state their case.
The only way this would change would be if there were compelling evidence that the partner or spouse who insists on staying has a history of violence or abuse. This would merit the family Lawyer of a client who was a victim of that violence or the parent of children that have endured violence, applying to the Family Court under Section 144 of the Family Law Act. An alternative is applying to the Magistrates Court under the Domestic and Family Violence Protection Act of 2012.
In both cases, the family lawyer could request an order from either of these courts that would oblige the violent partner or spouse to move out of the home in question. This order would be an injunction which means it can be enforced by the police if necessary when someone subject to that injunction refuses to abide by it.
Beyond the circumstances, we have just outlined it would be extremely difficult to force someone to leave the matrimonial home against their will, even if the relationship had broken down completely. It would be a case of simply having to accept it, no matter how unsatisfactory or unfair that might appear to be.
