To change the locks or not is a dilemma faced by couples when they decide to separate and it is one for which legal advice should be obtained.
It may sound easy enough to do but there are a number of factors to take into account before a partner can prevent their former partner accessing the property.
Owing to these varying factors as well as the fact that every separation involves different circumstances, Parke Lawyers Managing Director Jim Parke says a lawyer should be consulted.
“If there are no orders from a court dealing with the issue of who can occupy the home, it is necessary to look at who is the legal owner of the property. This can be found by doing a search online of the land title register.
“If both parties are listed on the certificate of title, they both have the right to occupy the property or change the locks. If only one party is listed on the title, then that party only will have the right to change the locks.
“If neither party owns the property, for example if you are renting, then the consent of the legal owner will be required and the terms of the lease or licence to occupy will need to be considered.”
It is important to consult a lawyer rather than seeking information from a friend, domestic violence support service or police, as their advice on the issue may be well-intentioned but incorrect. If your former spouse has changed the locks, seek advice before calling a locksmith or taking other steps to enter the property even if only to collect your belongings, to avoid being seen as causing conflict or inadvertently breaking the law.
Mr Parke says rather than the question of whether or not you can change the locks, a more important question to be first answered is should the locks be changed.
“If you fear for your safety or welfare, you should consider making an application for an intervention order, which may set specific rules about who can and cannot access the property and under what circumstances. This can be done by contacting the police or by attending a Magistrates’ court.
“Alternatively, you may seek an order for the sole use and occupancy of the home by making an application to the Family Court or the Federal Circuit Court.
“For example, you may do so as part of an application to the court for property settlement or for orders about the parenting of children.
“The courts will take into consideration a range of factors if called upon to determine this issue, for example who is caring for children of the relationship, the financial positions of the parties and whether each party has somewhere to live.”
Mr Parke says other practical considerations are the impact on any negotiations between the parties and whether it will benefit you in the long run if the goal is to ultimately resolve matters with your former partner.
“The best course of action for you will depend on the particular facts of your case and you should consult a lawyer to get this advice before acting,” he adds.