Who gets to stay in the home when we are separated and awaiting our division of assets and our divorce?

It depends. Either spouse may be able to stay in the home during separation because s. 19 of the Family Law Act states that both spouses have an equal right to possession of the matrimonial home. Therefore, if you and your spouse are not able to agree on who should stay in the home yourselves then you may want to bring an application for interim exclusive possession.

You should be aware that this is a very stringent test and places a high onus on the individual seeking exclusive possession to convince the court that it should be granted. The result of such an order would be to effectively kick one of the spouses out of the home and so the courts are reluctant to grant these types of orders. 

The criteria that the court will consider when making a determination regarding exclusive possession may be found in s. 24(3) of the Family Law Act: 

• the best interests of the children affected;
• any existing orders relating to family property and any existing support orders;
• the financial position of both spouses;
• any written agreement between the parties;
• the availability of other suitable and affordable accommodation; and 
• any violence committed by a spouse against the other spouse or the children.