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Kara Swift
Kara Swift
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The Ouster Dilema

Date:2 APR 2009

District Judge Michael Segal, Principal Registry of the Family Division

When a marriage or other relationship breaks down and the parties continue to live under the same roof they often suffer intolerable stress caused by harassment, or even violence. When this becomes too much for them, one of them applies for an ouster order against the other. When there are children, they suffer as much as, or more, than their parents. I assume for the purposes of this article that the parties are married, and that it is the wife who applies for the ouster order.

By s 33 of the Family Law Act 1996 the court has not only power to grant a non-molestation order, but also power to regulate the occupation of the home by making arrangements for the parties to share it if possible and, if this is not possible, by ordering one of them to leave it. Thus the court may order the husband to leave the home immediately, or within a specified time. If it does, his rights of ownership are not affected. These are usually decided in the subsequent ancillary relief proceedings. The court has to carry out a balancing exercise. It has to take into account all the circumstances including:

  • the housing needs and housing resources of each of the parties and of any relevant child;
  • the financial resources of each of the parties;
  • the likely effect of any order, or of any decision not to exercise its powers, on the health, safety or well-being of the parties and of any relevant child; and
  • the conduct of the parties in relation to each other and otherwise.


If the court finds that the husband is likely to cause the wife or any child significant harm, then it has to decide whether the harm caused to him by having to leave will be greater than the harm caused to her or the child by his remaining.

In practice, the wife usually applies to the court ex parte for non-molestation and ouster orders. In the Principal Registry of the Family Division (PRFD) she applies to the district judge for the day and her application is supported by an affidavit setting out her allegations against the husband and the reasons why he should leave. It is very rare indeed for her affidavit to justify an ex parte ouster order. If the district judge for the day considers that her affidavit makes out a prima facie case for protecting her or the children, he will make a non-molestation order and, where appropriate, an order giving her exclusive use of part of the home. He will fix the earliest possible return date and order the husband to file an affidavit in reply. In the PRFD the return date for a half hour hearing will be about 4 to 6 weeks after the ex parte application but the husband is told that he may apply on 48 hours' notice to discharge or vary the order.

To read the rest of this article, see April [2009] Family Law journal.

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