The Ex-Files: I need my partner to leave the house

Whether you own or rent your home there are steps you can take to ensure you are able to return and live in your home without your partner. Photo / 123RF

Q. My partner and I have been together for 8 years and we have a child aged 5. My partner has always had a bad temper but lately he has been yelling and abusing me a lot. The other day something upset him, and he pushed me in front of our daughter. She was very distressed, and we left immediately to stay with my family.

I told him I want to separate and that we can't live together anymore because I'm afraid of him. He is refusing to leave our house and has taken all the money from our bank accounts so I can't rent anywhere. We can't commute to my job and to my daughter's school from my parent's house. He is calling me non-stop and everywhere I go I am scared he is going to turn up. What can I do?

A. This is an awful situation to be in. The law does provide some remedies to keep families safe and make sure they are not displaced from their homes while matters are sorted out.

Occupation & Tenancy Orders

Whether you own or rent your home there are steps you can take to ensure you and your daughter are able to return and live in your home without your partner.

If you and/or your partner own your home, you would need to apply for an Occupation Order and if you are renting, you can apply for Tenancy Order. Either Order will allow you to have exclusive occupation of the property and it does not matter whether your home is owned solely by your partner or whether he is the sole tenant.

Both Orders can be obtained through the Family Court "without notice" which is an urgent fast track procedure where orders can be made without your partner getting notified first. These Orders are normally granted the same day as the application and are effective immediately.

A judge would only make these Orders if satisfied it is necessary to protect you and/or your daughter. So, it is important in your application to provide all of the details about what has happened and why an Order is needed.

If your partner refuses to leave the home after an order is in place or later visits without your consent, then he can be arrested by the police. He could also be charged with trespassing, which carries a three-month prison term if convicted.

Usually an Interim Order will be made in the first instance which would allow you to return to your home immediately. An Interim Order will usually last for a number of months, in the case of a Tenancy Order it would depend on the duration of your lease. Before any final order is made the Court is likely to allow your partner to respond to the Court application.

Furniture Order

At the same time, you can apply for an "Ancillary Furniture Order" which will give you possession of the furniture and appliances in your home.

Protection Orders

The safety and wellbeing of you and your daughter is the most important consideration. If you feel afraid of your partner, consider also applying for a Protection Order.

This Order would restrict your partner from any violence or threats of violence to you or your property. It also prohibits any form of contact with you, including visiting, phoning, texting, watching you or hanging around places you are likely to be.

This may hopefully alleviate some of the worry that he will turn up at your home, office or the school.

A further condition of the order is that your partner must attend an approved non-violence programme. These programmes aim to teach Respondents about the effects of domestic violence, how the Domestic Violence Act 1995 works, and how Respondents can deal with future conflicts in better ways so that they can live without violence. If mental health or drug and alcohol abuse are factors, then he will be referred to a programme that can help in these areas. Failure to attend without a reasonable excuse is a criminal offence.

Next steps

If possible, I recommend you consult a family lawyer to understand your options. There are also some excellent resources online with organisations such as Community Law Centres, Citizen's Advice Bureau, Women's Refuge, Shine and the Ministry of Justice. They can offer practical support and advocacy, and some legal advice.

As well as getting legal help, I encourage you to reach out to organisations which support the victims of family violence. They will understand the issues you're facing and will be able to help you move forward.

Jeremy Sutton is a senior family lawyer, specialising in divorce cases where there are significant assets, including family trusts and complex business structures. www.jeremysutton.co.nz Do you have a family law question? Email it to js@bastionchambers.co.nz. Questions should not exceed 200 words. Please provide a phone number. Your name will not be published. Jeremy cannot answer all questions, correspond directly with readers, or give legal advice. Jeremy's advice is of a general nature, and he is not responsible for any loss that any reader may suffer from following it.