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Property rights – changing locks

By March 21, 2019November 2nd, 2021No Comments

If you or your spouse are going through a difficult separation there may be a time that you wonder what the legal situation is in relation to changing locks on your property to exclude having your ex-partner return there. The answer depends on the “right of occupancy” to the property—read on to find out when changing locks is permissible and when it’s not such a great idea, even if it’s legal.

The “right of occupancy” relates to someone’s right to live at a particular property, whether owned or leased. Unless there’s a court order in place regarding a person’s right to occupy a property, there’s usually no real prohibition on changing the house locks. But let’s look at it in some more detail.

  • A property owned by both spouses (both parties are on the title)

If the property is jointly owned (by a married or de facto couple), each party has the legal right to live at the property unless there is an agreement in writing stating otherwise. This means that either of you can change the locks. But also, if either of you do, you can each regain access without getting the other’s consent.

  • A property owned by one spouse

Only that party may change the locks. If you are not the owner and the owner has moved out and you wish to change the locks, you will need to get the other party’s consent or provide them with notice that you intend to change the locks.

  • A property leased by both spouses (both parties on lease agreement)

If both spouses’ names are registered on the lease agreement, each party has equal property rights. This means they each have the right to change the locks (with the landlord’s permission) but each also then has the right to change them again.

  • A property leased by one spouse only

If only one spouse has their name on the lease, they have the sole right of occupancy and can lawfully change locks or otherwise exclude the other party from the property. Again, tenants must obtain landlords’ consent to change locks (which cannot be unreasonably withheld). You will need to cut spare keys for the landlord and any other tenants on the lease (provided they aren’t excluded by a safety notice or intervention order. Such notice or order can prohibit a party from entering the property, which provides the other party with the right to sole occupancy, and the right to change the locks.)

Excluding a spouse with a right of occupancy

If your spouse has a right of occupancy, they lawfully have the right to change the locks to re-enter the premises.  Even if an excluded spouse did not have a right to occupancy, however, they may still have an ‘equitable interest’ in the property at law, due to making financial (eg. mortgage payments) or non-financial contributions to the property (eg. maintenance), which may still confer occupancy rights. An equitable interest can only be recognised through the court system though, which can be costly and take time.

Through the family courts

If you are going through property proceedings in the family court system and there is a dispute over who will be staying in the family home, decisions about the property will be made by the court which will have the final say in the matter. The court has the power to grant a spouse an order for exclusive occupancy of the home, taking into consideration factors such as: the circumstances of each party (eg. financial ability to obtain alternative accommodation), whether there has been violence (verbal or physical), what the best interests of the kids are, and whether the family home can be segregated into private occupancies so parties can be “separated under one roof”.

What if you get home and the locks have been changed?

It’s best to seek legal advice immediately but this is not always practically possible at the time you need to gain entry to your home. However, it’s important to keep calm – if possible, try to contact your ex and negotiate a temporary solution – a third party that you both trust could assist to mediate.

If you have been served with a court order stopping you from entering the property, it’s best to find temporary hotel accommodation and obtain urgent legal advice the next morning. Don’t breach the order or you risk arrest – even if you disagree with the terms or the details of the order/application. Discuss next steps with your lawyer, whether it means obtaining paperwork or attending a court hearing.

If you are a legal owner, or named as a tenant on a lease,  you do have the right to have a key and to enter. You can legally use reasonable force to enter the property or hire a locksmith to help you enter. If there is any risk of trouble with your ex, consider contacting your local police station who may be able to assist. Again stay calm, as becoming emotional does not help the situation.

What to consider when thinking of changing locks

As well as considering the legal position around changing locks, rather than act out of anger or spite, it’s important to consider whether changing locks to your property is really necessary.  Do you have actual security or privacy concerns (for example, are you worried your ex will claim they’ve lost the keys but you suspect they still have them)? Does the other party have alternate accommodation? Has the other party moved out already or are you trying to lock them out?

If you have genuine concerns over safety, make sure you contact the police who may make an application for an intervention order on your behalf, or they can refer you to the Magistrates Court so that you can make your own application.

Getting advice from a family lawyer about changing locks is a good idea, as you don’t want to unilaterally change the locks—even if you’re entitled to–if it will cause so much friction that property settlement or parenting negotiations are derailed.  Also, consider if changing the locks will impact children or other vulnerable people as this could look very bad in future legal proceedings, so ensure you get legal advice before taking action.

Do you need assistance with a situation where you have been locked out of your home, or indeed you wish to change your locks? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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