Who can live in fam­ily home in sep­a­ra­tion?

Manawatu Guardian - - NEWS -

When a cou­ple sep­a­rate, who is en­ti­tled to oc­cupy the fam­ily home?

Often a cou­ple will jointly own the fam­ily home, or both be listed on the ten­ancy agree­ment. Af­ter a sep­a­ra­tion, the par­ties may dis­agree about who should have the right to live in the fam­ily home while the re­la­tion­ship prop­erty is be­ing sorted out.

Gen­er­ally, both of the own­ers or ten­ants will au­to­mat­i­cally have a right to oc­cupy the home. To ex­clude an owner or ten­ant, it might be nec­es­sary to ob­tain an oc­cu­pa­tion or­der, or ten­ancy or­der from the court. The Prop­erty (Re­la­tion­ships) Act gives the court the dis­cre­tion to grant an or­der al­low­ing ei­ther spouse or part­ner the right to ex­clu­sively oc­cupy the fam­ily home, or any other premises form­ing part of the re­la­tion­ship prop­erty. The court can also de­cide how long the or­der will last, and what other terms or con­di­tions will ap­ply. The ac­com­mo­da­tion needs of any chil­dren are rel­e­vant when the court is de­cid­ing whether to make an or­der, and they will look at what is just and fair in the par­tic­u­lar cir­cum­stances of the case. It is also pos­si­ble for the court to make an an­cil­lary fur­ni­ture or­der deal­ing with the use of house­hold fur­ni­ture, ap­pli­ances, etc. The law also pro­vides mech­a­nisms for ob­tain­ing ex­clu­sive oc­cu­pa­tion even where the per­son seek­ing oc­cu­pa­tion is not an owner or ten­ant (for in­stance where the house is owned by a Fam­ily Trust).

If oc­cu­pa­tion is nec­es­sary for pro­tec­tion of a part­ner or their chil­dren (even if there is no sep­a­ra­tion), then it will likely be quicker and more ap­pro­pri­ate to seek oc­cu­pa­tion or ten­ancy orders along­side a pro­tec­tion or­der un­der the Do­mes­tic Vi­o­lence Act. It may be pos­si­ble to ap­ply for such an or­der ur­gently and without no­tice to the other party. Often a de­ci­sion can be made on the same day the ap­pli­ca­tion is lodged.

It is ad­vis­able to con­tact a lawyer or Com­mu­nity Law Cen­tre for more in­for­ma­tion or as­sis­tance with these mat­ters.

For free and con­fi­den­tial ad­vice and in­for­ma­tion visit the Palmer­ston North Cit­i­zens Ad­vice Bureau in Han­cock Com­mu­nity House, 77 King S. Open­ing hours: Mon-Fri 9 am-4.30 pm, 357 0647 or 0800 367 222. We have a free le­gal ad­vice ser­vice by qual­i­fied lawyers most Thurs­day evenings at 7.30 pm, and a JP is avail­able on Tues­days from noon — 2.30 p.m. No ap­point­ment is nec­es­sary for ei­ther of these ser­vices.

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