Who Gets to Stay in the House During Separation?

So, here’s the thing people always ask when a relationship falls apart: who actually gets the house? Or more bluntly—who gets to stay put, and who’s the one lugging boxes to a mate’s spare room?

Sounds straightforward. But it’s really not. You’d think there’d be some rule in the playbook. Like, “If your name’s on the deed, you stay.” Or “First one home after the breakup keeps it.” Nah. Real life doesn’t work that way. And honestly, it would be too simple if it did.

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Can your ex just tell you to leave?

Quick answer—nope. Not without a court order anyway.

If you’re married or in a de facto relationship, you both usually have the right to occupy the home. Even if the title’s in just one person’s name. Yep, that surprises people. Ownership on paper isn’t the only thing the law looks at.

Now, that doesn’t mean it’s always smooth sailing. People sometimes try changing the locks or pulling stunts to edge the other person out. Technically, that’s not legal. But let’s be real—it does happen. And when it does, it usually just makes things uglier and more expensive to untangle later.

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But what if things aren’t safe?

Different story. If there’s family violence—physical, emotional, financial, any of it—the law can step in fast. Courts can grant what’s called “exclusive occupation.” That basically gives one person the right to stay, and the other has to leave.

And fair enough. Safety trumps property. Always. Doesn’t matter who paid the mortgage or who bought the couch—if someone’s at risk, the balance tips in their favour.

Worth noting: “violence” isn’t only about bruises. Financial control, intimidation, and emotional abuse count too. A lot of people don’t realise that, but the courts absolutely do.

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Living together after separation—can that even work?

Awkward as it sounds, lots of separated couples end up doing exactly that. It’s called “separation under one roof.”

Why would anyone put themselves through that? Money, mostly. Housing’s expensive. Renting’s a headache. And sometimes, it’s just about keeping the kids in the same school.

Does it work? For some, yes. They split bills, draw up a roster for the washing machine, and try not to drive each other mad. For others, it’s chaos. The tension, the arguments, the weird vibe at dinner—it can be brutal.

Actually, sometimes people start out thinking, “We’ll just share the space for a while until things settle.” But then weeks turn into months, and no one wants to blink first. It’s not uncommon to see people essentially living as flatmates for years after breaking up. Functional? Sort of. Healthy? Not always.

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How do courts look at all this?

This is where things get murky. There’s no strict formula that says, “You stay, you go.” Judges look at the bigger picture—what’s fair, what’s practical.

They think about stuff like:

• Who’s mainly looking after the kids

• Who can realistically afford to live elsewhere

• Whether stability for the kids matters more than financial convenience

• Any safety red flags

• Who actually owns or rents the place, and how it’s being paid for

So yeah, it’s less about “rights” and more about what arrangement makes sense.

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Renting instead of owning—same rules?

Pretty much. If the lease is only in one name, that doesn’t kick the other person out straight away. Being a partner gives you occupancy rights too.

Worth knowing: landlords don’t love messy situations. A quick chat with them can save trouble later. Sometimes you can transfer a lease or add someone’s name on. Sometimes not.

Pro tip—get agreements in writing. Verbal promises about “I’ll cover the rent” have a way of evaporating when emotions run high.

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If you move out, do you lose your share?

This one’s a myth that refuses to die. People reckon if they leave, they’ve “given up” their claim. Not true.

Property settlements look at contributions and future needs. They don’t punish someone for moving out. You might lose the short-term convenience of the space, but not your share of the value.

That said—don’t just storm out without a plan. Grab your stuff, get advice, think about parenting arrangements. Walking away in a rush can make things messier than it needs to be.

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Quick example to paint the picture

Say a couple splits. One stays in the family home with the kids. The other packs a bag and crashes at a sibling’s place.

When it comes time for the property settlement, the one who left doesn’t just “lose” their half of the house. But the fact the kids had stability in the home might weigh in when temporary orders are sorted.

Another example? Two people separate, no kids involved, and both want to stay in the house. Neither budges. Eventually, the court steps in and gives one of them exclusive use until the property settlement. Not because they “deserve” it more, but because someone has to, otherwise it’s just unworkable.

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The emotional side

This part doesn’t get talked about enough. A house isn’t just bricks and paint—it’s years of memories, the backyard the kids grew up in, the kitchen you fought and laughed in. So when separation hits, the fight over the house isn’t really about walls. It’s about security, belonging, control.

That’s why people dig in. And why it gets so heated.

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The financial reality

Let’s not sugarcoat it—keeping a house going on one income after separation is tough. Mortgages don’t magically shrink. Bills don’t care that you’re splitting up.

Sometimes, neither person can actually afford to stay in the long run. In those cases, the house gets sold and both move on. Painful, but practical.

Thing is, people often burn through cash fighting about who gets to stay, only to sell it six months later anyway. That’s why early advice and mediation can save a lot of heartache.

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FAQs

Can my ex change the locks? Not legally, unless there’s a court order. If they do it anyway, you can usually challenge it.

Do I have to leave if it’s their house legally? Not necessarily. Being married or de facto gives you a legal foothold too.

What if we both refuse to go? That’s when mediation or court orders come into play. Someone eventually gets exclusive use.

Can we sell the place immediately? Only if both agree, or a court says so. Otherwise, you wait until settlement.

How do kids factor in? Courts lean towards stability. Usually, the parent caring for the kids most gets priority to stay—at least short term.

What if I can’t afford to stay even if I get the house? That’s a common one. If you can’t make the mortgage or rent work solo, you may have to sell or restructure your finances.

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The takeaway

There’s no one-size-fits-all answer. Sometimes people stay under one roof. Sometimes one moves out. Sometimes the court decides.

The key is not to panic or make rash moves. Understanding your options early can save you stress, money, and sleepless nights.

And if you’re stuck trying to figure out who should stay in the home, Mediation Australia can help by guiding the conversation, keeping things civil, and working towards an agreement that actually works for both of you.

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Legal Disclaimer

This is general info only, not legal advice. For guidance specific to your situation, speak to a qualified professional.