Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 24 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
When going through a separation, it’s very common for one party to reside in the matrimonial home and for the other party to leave.
If you remain in the property, its reasonable that you would like to maintain your privacy and stop your ex-partner from accessing the property. Whether you can stop them, is a different question.
The answer as to whether you can change the locks on the property you are living in can depend on who legally owns the property.
If the property is rented
You would need to obtain your landlord’s permission before doing anything to the property. Landlords, however, cannot unreasonably withhold their consent. You may be obligated to provide a spare key to the landlord or any other tenants if you change the locks.
The property is owned by one party.
If you own the property you have the right to change the locks. If the property is owned by your ex-partner you would need to seek their consent before changing the locks or at least ask them to return their key.
The property is owned by both parties jointly.
Both owners have the right to change the locks. However, if you change the locks, your ex-partner is entitled to regain access to the property without your consent.
Can the Court step in?
The Courts have the power to decide on who is to live in the property. They will look at the reason as to why you want to change the locks before making an order for sole occupancy.
It will be important to consider whether the other party has anywhere else to live or whether they’ve have already moved out. Arrangements around the collection of their property from the residence will need to be addressed.
If there are safety concerns for any occupant or concerns as to damage to property a Court will take this seriously.
A Magistrate Court has the power to assign sole occupancy to one party during domestic violence proceedings through an ouster order.
The Family Courts also can make decisions about who occupies the property – either in the short term or permanently.
If a Court has given an order to this effect, you can change the locks regardless of whether you own the property or not. If you are renting you still need to discuss this with your landlord.