Question: My spouse and I were together for six years but separated three years ago. We jointly own our mortgage-free home, where my ex still lives with our 8-year-old child under an occupation order, while I pay rent elsewhere. Is an occupation order automatic, and what does the court consider? Can I claim occupational rent, and can we agree a weekly payment if the house, which we’re planning to put on the market, does not sell?

Answer: An occupation order is not automatic. The court decides whether to make one based on the circumstances. An order may give your ex the right to remain in the home, but it does not automatically settle whether they should compensate you for having sole use of it. There are two separate issues: who can live in the property, and how to deal with the financial consequences of that arrangement.

Who gets to stay in the home?

Under the Property (Relationships) Act 1976, the court can make an occupation order giving one partner the right to occupy the family home for a specified period and on particular conditions. Making the order is discretionary. However, once the court makes an order, the parties must comply with its terms unless it is varied or discharged.

When deciding whether to make an order, the court must give particular consideration to providing a home for any minor or dependent children of the relationship. It may also consider each partner’s accommodation needs, health, financial position, and the need to release capital and end the property dispute.

An occupation order provides a right to live in the home. It does not, by itself, determine who ultimately owns the property or how the sale proceeds will be divided.

What factors do courts consider when deciding who can remain in the family home after separation, and when might an ex-partner be entitled to occupational rent while the property awaits sale? Read the full NZ Herald Ex-Files article here.