Is Occupation Rent Ordered Where One Party Refuses to Vacate a Jointly-Held Matrimonial Home?

The answer is: only rarely. If One Party refuses to sell the jointly-held matrimonial home and continues to reside therein while the other Party lives elsewhere, occupation rent can be considered by the court. What is more common is that the court considers the One Party’s occupation of the jointly-held home having provided him/her and possibly the children with accommodation pending trial. The fact of the occupation of the home, including his/her exclusive use of the other Party’s one-half interest therein, has been a financial benefit to him/her in the provision of accommodation. This financial benefit should be taken into account upon assessing the quantum of his/her entitlement to spousal support.

Both Parties should jointly fund repairs and ongoing maintenance of the jointly-held home as it is their joint responsibility, assuming they have sufficient funds for proper maintenance. Should both Parties deliberately allow the property to deteriorate and ignore their responsibility toward the jointly-held home, the court may order them, along with the sale, to repair the home for sale, failing such agreement that the property be listed and sold "as is.” Of course both Parties will equally suffer the hefty financial penalty the Market pays for “as is” properties. It is also usual that the non-occupying Party, upon sale, reimburse, the other from his/her share of the sale proceeds for one half the principal payments made on the Mortgage and one half of the insurance costs from the date he/she left the jointly-held Matrimonial Home.

To read further on this issue, reference may be had to the case of Mudronja v Mudronja

April 2015