A question which is often asked by parties who have separated is whether they can change the locks to the house to stop the other party having access to the property.
This is an area not without its complexity as it will depend on numerous factors as to whether one party has the legal right to exclude the other from the property, and each individual matter will turn on its own facts.
Property can be held by parties in a number of ways, for example as joint tenants or in one party’s sole name, and the way the property is held can affect the legal rights of the parties.
For example, if the property is held as ‘joint tenants’, the legal right to occupy the premises is held concurrently by both parties. While one party is able to change the locks to the property, the other party has an equal right to engage a locksmith and change the locks again.
Further, this ‘equal rights’ starting point is by no means the final position in respect of occupancy rights for the property.
In determining applications to decide who will have exclusive occupancy of a property pending finalisation of property matters between parties, the Court can take into consideration the:
- financial circumstances of both parties, including their ability to rent other premises;
- whether there are children involved, including who is the primary caregiver for the child/ren, the affect a change in occupancy may affect the primary caregiver or child/ren;
- whether there are any violence or other behavioural issues or concerns (which could also affect the child/ren);
- the physical layout of the property to ascertain whether the parties can cohabitate in separate areas of the premises pending final resolution of matters between them.
The situation becomes even more complex if one party is not on the title to the property (for example in a de facto relationship or for tax/asset protection reasons)
In these circumstances, whether the party who is not on the title has a right to occupancy of the property is based on an ‘equitable right’ to occupy the property rather than a ‘legal right’ to exclusively occupy the property. Simply by virtue of ‘ownership’ of the property on the title, the person listed on title begins the argument in a stronger position.
Essentially, for the party who is not on title to remain in exclusive possession of the property, the Court will need to make an order or declaration to that affect and this can be quite difficult and costly to obtain, depending on the particular circumstances of the relationship between the parties.
If you need assistance after separation in knowing what your rights and obligations are in respect of the former matrimonial/de facto property, please feel free to telephone one of our Gold Coast Family Lawyers to schedule an initial consultation, which is free of charge, today on 07 5563 8970.
