The Family Court has denied a surviving partner’s application for an Occupation Order after deciding that the Court had no jurisdiction to make the order.

Background: Under the Property (Relationships) Amendment Act the Court may make an order granting to either spouse or partner, for such period or periods, and on such terms and subject to such conditions as the Court thinks fit, the right personally to occupy the family home or any other premises forming part of the relationship property.

Prior to the partner’s death the de facto couple had lived in a property owned by a family trust set up by the now deceased partner. After his death the surviving partner continued to live at the property with the consent of the trustees.

The trustees later advised her that she needed to vacate the property.

The partner applied to the Court for an Occupation Order, seeking to continue living in the home.

The question that had to be decided by the Court was whether the home could be deemed relationship property, even though it was not owned by either partner to the relationship when the relationship ended on the death of the man.

The Court decided that the home was not relationship property as it was owned by the family trust, meaning that neither of the couple had ownership rights to it.

This meant the Court had no jurisdiction to grant an Occupation Order as the property was not deemed to be the “family home” or part of the relationship property.

The surviving partner had also applied for a Tenancy Order, claiming that she was a tenant of the property. She claimed that because she had been permitted to live at the property by the trustees this had effectively created a tenancy.

The Court rejected this, instead stating that the trustees had given the surviving partner a licence to occupy the property. She did not pay rent, nor had she signed a tenancy agreement. The Court found therefore that she was not a tenant.

Both applications by the surviving partner accordingly failed.

If there is confusion around the ownership or occupation of property, it pays to seek advice from a professional with experience in the area.

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.