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!