WHY SHOULD YOUR PARTNER OR SPOUSE LIVE IN THE FORMER MATRIMONIAL HOME RENT FREE WHILE YOU PAY RENT ELSEWHERE?
March 22, 2013
During the tumultuous end of your relationship, you may have had to leave the home you shared together. You may have been asked or told to leave. The home may have been owned outright or you were still making mortgage payments on that home at the time of separation. You find yourself having to pay rent elsewhere while they enjoy the family home.
If you were married or in a domestic partnership that was a de facto relationship you may be able to assert they pay you an ‘Occupation Fee’. Your former partner or spouse should not remain living in the home rent free while you pay rent elsewhere. This claim is made by you for contributions made post separation. It is made because the Court recognises that the person occupying the house is receiving by way of a benefit from you the ability to live rent free! If the property is owned outright, then effectively the person still living in the home is using your hard earned capital without any return to you. If the person living rent free is also the primary caregiver of the children a Court may reduce the amount of the occupational rent. A Court may also find that some breathing space should be given for the parties to adjust to the separation and changes to dealing with finances. Although it would vary depending on individual circumstances, a Court may not order an occupation fee to be payable for the first two or three months. If successful, the ‘Occupation Fee’ could entitle you to an adjustment in your favour in any property settlement which could increase your share of the net asset pool.
If at separation, you owned the home outright or if the other person has not been contributing to the ongoing mortgage payments, rates, insurance or upkeep of the property or contributing very little, you may be entitled to claim that they pay an amount equivalent to one half, or more depending on the extent of your interest in the property, of the market rental value of the property from the date you separated.
That such a fee is payable is recognised by the Courts.