The Ouster Dilema

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...

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