Separation is often a challenging and emotionally charged time in a person’s life, usually accompanied by significant decisions regarding living arrangements. One common question that arises during this period is whether it is legally permissible to change the locks on a property after separation. Unfortunately, it is difficult to give a simple answer to this question as it depends on a number of factors, including whether the property is rented or owned, and whose name is on the relevant paperwork (usually being the title or the rental agreement). Understanding the law regarding the occupancy of a property is crucial in navigating this situation within the bounds of the law.
Leased Property
When the property is leased or rented, all tenants listed on the lease have the right to live in the property during the term. However, in this situation, the paperwork is largely irrelevant, as tenants are generally prohibited from changing the locks without the landlord’s permission, even in the context of a separation. As such, altering locks without proper authorisation could lead to breach of lease terms, or even termination of the tenancy.
This does not mean that a person in a leased property must continue to reside with someone until the end of the lease, especially in situations involving domestic or family violence. In such situations, it is wise to speak to a tenant advisory service in the relevant state or territory, as there are options to help tenants break leases to escape unsafe situations.
Owned Property
Joint owners have equal rights to access and occupy a jointly owned property unless and until a legal agreement or court order dictates otherwise. Therefore, if both partners have joint ownership of the property, neither party can unilaterally change the locks without the other’s consent.
By contrast, in cases where one party solely owns the property, subject to any contrary court order or agreement, that owner generally has the right to change the locks. However, even if one party is the sole owner, changing the locks without prior discussion can be viewed as an aggressive move and may escalate tensions during separation negotiations.
In addition, changing the locks, even with full legal authority as the sole legal owner, may be subject to challenge in family court proceedings. If there are children involved, locking a co-parent out of the home can have significant emotional and psychological consequences for the children. As the court prioritises the best interests of the children, in most cases it is important to not take unilateral steps that will disrupt the relationship between the children and the other parent.
What Orders Can the Court Make?
When disputes over the occupancy of a property arise after separation, parties can seek court intervention to resolve the issue. The court has the authority to make various orders, depending on the circumstances. For instance, the court can grant an exclusive occupancy order, allowing one party to remain in the property while the other is required to vacate, regardless of the legal ownership of the property. This order is typically issued to ensure the stability and well-being of children or the safety of one of the parties.
In contrast, the court can also issue a non-removal order, preventing either party from removing the other from the property. This order aims to maintain the status quo and protect both parties’ rights until a final resolution is reached. Moreover, if one party has been locked out of a jointly owned property, the court can order financial compensation or reimbursement for expenses incurred as a result of being denied access. Finally, the court may order the sale of the property and the division of proceeds between the parties, effectively ending their co-ownership.
It is important to note that obtaining court orders requires legal proceedings, and both parties will have the opportunity to present their case and provide evidence of their respective positions. The court will consider factors such as the best interests of children, financial circumstances, and safety concerns when making these orders. However, this is likely to be a difficult and time-consuming process and may incur substantial legal fees.
Seek Assistance
Navigating property issues after separation in Australia can be complex and emotionally charged. While changing the locks after separation may be legally permissible in certain situations, it is essential to consider the implications and consequences of such actions, especially in cases involving joint ownership, children, or leased properties.
If in doubt, you should seek legal advice and explore mediation or negotiation options to resolve disputes amicably whenever possible. When disputes cannot be resolved privately, turning to the court system for orders regarding property occupancy is an option.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 08 9335 9877 or email [email protected].
