DIVORCE – Can one spouse kick the other out of the house?

In the breakdown of any marriage or defacto relationship, the law gives to each of the spouses the right to apply for a Court Order that will force the other spouse to exit and remain away from the family home. There are two ways that this can be done:

• An “Ouster Order” which is made under the Qld Domestic Violence and Family Protection Act; or
• An Exclusive Occupancy Injunction which is made under s.114 of the Family Law Act

For many years now, the Ouster Order option has been the preferred solution. There are no filing fees , easy to complete forms, an expedient and simplified hearing process in front of a local Magistrates Court, and perhaps, most importantly of all, the availability of the local Police who can assist (in varying degrees) with the obtaining, service and enforcing of the Order.

Potential detractions with Ouster Orders however, is that to be entitled to one, the applicant spouse must be prepared to hit the other spouse with a full Domestic Violence Order (DVO) which of course also requires that spouse to prove that there has been “violence” within the household. DVO’s of course are entirely necessary and appropriate where violence is in play, but there are many other situations where non-violent behaviours can make things so uncomfortable in the home, that continued sharing of the home is rapidly becoming intolerable and – it’s only a matter of time before someone cracks.

In these more border-line situations, an Exclusive Occupancy Injunction (EOI) might be a better solution. In a recent decision of the Family Court, the Court said that whilst it would not normally grant an EOI on the mere existence of tension in the home, it was similarly not necessary to prove that a shared home life had become intolerable and that instead, the Court only needed to be satisfied that it was not reasonable or sensible to expect the parties to continue to share a home together.

In that case, the availability of another residence where the Wife could live (rent free) was a sufficient tipping point for the Court to grant an EOI in favour of the Husband against the Wife, even though there was no evidence to say that there was any prospect of violence between them.

Michael Zande is a Queensland Law Society Accredited Family Law Specialist with over 30 years’ experience in the field. He is the principal at Zande Law Solicitors, Suite 7, Norwinn Centre, 15 Discovery Drive, North Lakes.  To contact Michael for advice, phone 3385 0999.

The information in this article is merely a guide and is not a full explanation of the law.  This firm cannot take responsibility for any action readers take based on this information.  When making decisions that could affect your legal rights, please contact us for professional advice.