Can I, and should I change the locks?
One of the common questions asked of our family lawyers is “Can and should I change the locks?” after we separate.
If there is no court order which affects that person’s right to occupy the property, then in most circumstances the locks can be changed. However, this depends on which party legally owns the property.
Circumstances when the locks can be changed:
Where the property is owned by one party
- The person who owns the property has the right to change the locks.
- If the non-owner needs to gain access, it is best to seek the other party’s consent or provide notice to the other party of their intent to change the locks.
Where the property is owned by both parties
- Both owners have the right to change the locks.
- If you change the locks, then your spouse is entitled regain access to the property without your consent.
Where the property is leased to you
- You should obtain the landlord’s consent. The landlord cannot unreasonably withhold their consent.
- You are usually obliged to provide a spare key to the landlord and any other tenants named on the lease (unless one of the tenants is excluded under a safety notice or intervention order).
In all circumstances
- The Family Courts can make decisions about who occupies the property – either in the short term or permanently.
- An intervention order may prohibit one party from attending the property, thereby providing the other party with the right to sole occupancy, and the right to change the locks.
- If you have concerns for your safety you should contact the police and they may make an application for an intervention order on your behalf or refer you to the Magistrates’ Court to make your own application (you can ask a lawyer to help you with your own application).
There are several things to consider about whether you should change the locks to your residence upon separation.
The benefits are obvious – personal security, privacy and the assurance of knowing that the items in your property will be there when you get home. However, it is also important to consider the following:
- Are you concerned about your or another occupant’s safety?
- Has the other party already moved out of the property or are you looking to lock them out?
- Does the other party require access to collect their belongings or for some other purposes (for example, property maintenance or preparing the property for sale)?
- Does the other party have somewhere else they can live?
- Do you have an agreement about who is responsible for the mortgage repayments or rent?
- Will changing the locks frustrate negotiations of your property settlement or parenting arrangements?
Whether you can and should change the locks usually depends on your circumstances and you should seek legal advice before doing so.
