The Ex-Files: Can I make a claim for occupational rent post-separation?

Navigating occupational rent claims post-separation: What to know. Photo / 123RF

Q: My ex-partner and I lived together for eight years. We were in the family home for that period. For the last four years, my ex-partner and our 10-year-old child have remained living in the family home, while I have been renting elsewhere.

My ex-partner and I have been arguing over post-separation contributions. My ex-partner has been covering expenses for the mortgage, rates and insurance. I think the former family home is in a trust, but I will need to check.

Can I make a claim for occupational rental for the whole period? And can she claim the outgoings she has paid since separation?

A: The family court has a discretion whether to award occupational rental or not. It is always an advantage to indicate at the start of dispute or separation whether you intend to make a claim for occupational rental.

There is often a period of six to nine months before any occupational rent is awarded. I would recommend you get a rental assessment of the property. This will help you to determine what the amount of your claim may be.

The presence of your child in the former family home normally reduces the amount that can be claimed.

Outgoings

The claim for outgoings is discretionary. The court will consider all aspects – there have been many cases where the various discretionary claims of post-separation contributions have offset each other.

In making any claims, you need to ensure the amounts claimed are not disproportionate to the legal expenses and time it may take to resolve the dispute.

Often the outgoings – such as the mortgage, rates and insurance – are like occupational claims. You can talk to your lawyer about that.

If the occupier of the family home has paid off some principal on the mortgage, they are usually reimbursed.

Trust

Check whether your house is in a trust because, if it is, you may not be able to claim occupation rent at all. You or your lawyer will need to obtain a copy of the trust document and see if there is power for the trustees to charge rent. The short point is that having the property in a trust makes matters more complicated for division after separation.

Occupational rent is a frequent dispute post-separation. As any award is discretionary, best practice is to agree how this will be figured out at the start of the separation.

Summary

If you are going to seek occupational rent, give the other party notice at the start of the occupation of the home by the other party or as soon as you know.

Occupational rent and all other adjustments are open to interpretation.

For most people there are bigger issues at stake – namely the care of children and the value of the family home.

My big tip is to ensure the discussion is proportional to the amount of dispute. For example, if the amount of occupational rent claimed is $5000, do not spend most of that amount spending money on lawyers or your own time.

Try to come to an agreement yourself in relation to post-separation contributions in your separation if you can. Good luck!