After a separation, it’s common for one partner to stay living in the family home while the other moves out. This often leads to a key question:
Why it’s not an automatic right — and what New Zealand courts say about it
Should the person staying in the home pay something to the other partner for having it all to themselves?
The legal term for this is occupational rent. And the short answer is: maybe — but it depends. Occupational rent is not a guaranteed right. It’s a type of compensation the Court might award, but only if certain conditions are met.
What Is Occupational Rent?
Occupational rent is a form of compensation that may be ordered when:
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One partner has exclusive use of the family home; and
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The other has been excluded from using it, even though they still own part of it.
It’s a discretionary remedy—this means the Court decides based on fairness, not on strict rules or entitlements.
What Does the Law Say?
Under section 18B of the Property (Relationships) Act 1976, the Family Court can order compensation when one partner continues to make contributions after separation. That may include exclusive occupation of the home.
Section 18B(2):
If… a spouse or partner has done anything that would have been a contribution to the relationship, the Court, if it considers it just, may order compensation by way of money or property.
“Contribution” includes both financial and non-financial efforts — like paying the mortgage, caring for children, or maintaining the home (see s 18(1)–(2)).
What Do the Courts Consider?
Even if one partner has made a contribution, the Court still has to decide whether it’s fair to award compensation.
As noted in legal commentary from Thomson Reuters – Family Property:
“The mere fact that one party has made such a contribution is not… sufficient. The Court must also be satisfied that it is just in all the circumstances.”
(C v C [2008] NZHC 757 at [28])
And in other decisions:
“Section 18B should not be used as a ‘cure all’… Care must be taken to avoid double counting or unfairness.”
(Wilton v Crimmins [2003] 23 FRNZ 357; Bell v Bell HC Auckland CIV-2005-404-5479)
Examples: How Courts Have Ruled
Scenario A: One Partner Pays All Mortgage and Expenses
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One partner stays in the home and pays all the costs. The other later asks for occupational rent.
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Outcome: The Court may decline or reduce compensation, since the staying partner already covered the financial load.
(See Bell v Bell)
Scenario B: One Partner Pays the Mortgage While the Other Lives Rent-Free
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The non-occupant continues paying the mortgage while being excluded from the house.
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Outcome: The Court may award occupational rent as fair compensation to the partner who carried the costs.
(See E v G)
Scenario C: One Partner Delays the Sale of the House
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The occupying partner blocks or delays selling the home.
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Outcome: Compensation may be awarded, but only for the period of delay, not the full time since separation.
(See C v C)
Scenario D: Delay in Making a Claim
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One partner stays in the home. The other takes no action for two years, then asks for compensation.
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Outcome: The Court may reduce or deny occupational rent because of implied consent or acquiescence.
(See Nash v Nash)
Scenario E: Claim Overlaps with Child Support or Maintenance
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One partner stays with the children while the other pays child support and spousal maintenance, and also seeks occupational rent.
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Outcome: The Court may decline occupational rent to avoid double-dipping, since support is already being paid.
(See Wilton v Crimmins and Bell v Bell)
What If You Don’t Want to Go to Court?
Occupational rent can be discussed and agreed upon through mediation. Parents may choose to make a private arrangement about whether compensation is fair or necessary.
Sorting it outside of court is often faster, cheaper, and less stressful for everyone.
What the Courts Have Said About Occupational Rent
New Zealand courts are clear: occupational rent is not automatic. The person claiming it must show that:
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They made a post-separation contribution;
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It is just and fair to compensate them; and
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The claim does not duplicate other forms of support (like child support).
Courts also consider whether the claim was delayed, or if there was implied consent to the arrangement.
Key Takeaways for Parents
✅ Occupational rent is not a guaranteed right — it depends on your situation.
✅ It’s about fairness, not entitlement.
✅ If you’re paying all the costs but can’t live in the home, you might have a claim.
✅ If you’re staying in the home, the Court may look at whether you’ve already made up for it financially.
✅ It’s best to raise these issues early, and seek legal advice.
✅ Mediation is often a good way to resolve this without going to Court.
Final Word: Fairness, Not a Formula
Occupational rent is a case-by-case decision. The Court will look at all contributions—financial and non-financial—and assess what is fair overall. It’s not meant to replace other claims like spousal support or child support.
As the case law shows, it’s all about context and timing.
Disclaimer
This blog is for general information only and does not replace legal advice. If you are in a relationship property dispute or thinking about a claim for occupational rent, please seek advice from a qualified family lawyer.
Some of the legal sources in this blog include:
“18B Compensation for contributions made after separation, Family Property 494438048” – Thomson Reuters, New Zealand.
FDSS is not a law firm. We support parents going through separation and co-parenting transitions through education, guidance, and practical tools to help families move forward.
