The High Court has overturned an order made by the Family Court for a payment of $100,000 as compensation for more than eight years of occupational rent.

The couple separated in 2008 after 26 years of marriage. After the separation, the husband moved out of the family home whilst the wife continued to live in it.

The husband applied to the Family Court in 2021 for an order for the sale of the home, half of the proceeds of the sale of the property, and compensation for occupational rent for eight and a half of the years that the wife lived in the property.

The wife opposed the order, claiming that she was entitled to an unequal division of 70% of the proceeds of sale, as she had been responsible for the maintenance of the property since the parties separated.

The Judge dismissed the wife’s claim for unequal division, stating that it wouldn’t be repugnant to justice to order a 50/50 split of the property.

The Judge decided that because the wife had the benefit of living in the property, whilst the husband had to rent a different property, that she should pay him $100,000 out of her half of the proceeds of the sale of the property as occupational rent.

The wife appealed, and the High Court decided that the costs of each party were similar enough that there should be no award of compensation to either side. The rental payments made by the husband after the separation were near equal to the house maintenance and mortgage payments of the wife.

The Court therefore overturned the order for a compensation payment of $100,000, and ordered an equal division of the sale of proceeds between the parties.

This decision demonstrates the significant discretion that the Court has in such matters, and the difference an occupational rent claim can make – or not.  It therefore pays, quite literally, to be aware of your rights and entitlements after separation.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins & Matthew Binnie