When a marriage breaks down, one of the pressing questions that arises is whether one party has to move out of the family home. Whist there is no legal barrier preventing someone from leaving, the decision has significant implications.
There can be clear benefits, when tensions and conflicts arise, for one spouse or partner to remove themselves from the environment and often, couples must focus on what is best for their children. However, as a result of the current cost of living crisis, some separated couples have no choice and they find themselves having to live together pending the final settlement, out of financial necessity.
It should be noted that leaving the family home does not absolve either parties’ responsibility towards mortgage payments if they are a joint borrower on the mortgage. Both parties remain financially obligated by way of their mortgage covenants until a formal agreement or court order states otherwise.
Occupation orders
The answer to the question ‘do I have to move out of the family home?’ is ‘no’, unless there is an occupation order denying or restricting access. The court has the power under the Family Law Act 1996, to make an occupation order determining who is to live at the family home or in certain areas of the family home and to order the removal of the other partner from the family home, in circumstances involving domestic abuse. This can be available for spouses, cohabitants and civil partners. An occupation order can even exclude someone from the area around the family home by way of a zonal occupation order.
Ownership and occupation of the property when separating
If you are the direct owner of the property, you obviously have the right to live there, unless there is an occupation order in place. If you and your spouse or former partner own the property together, you both have the right to live there. Even if you don’t own the property outright or jointly, as a spouse or civil partner, you have a right to the occupation of the family home at least until your divorce or dissolution is finalised. In order to protect the right of occupation, you need to register a Family Homes Right Notice at the Land Registry.
Leaving the family home – considerations before moving out
You should carefully consider leaving the family home and make sure you get legal advice before you act. In addition to the task of having to find a place to live and the extra cost of maintaining two separate households, if you are no longer living under the same roof, you may have to consider child- care arrangements and the child support obligations, that will arise from this. It is wise to agree terms with your spouse or former partner, including when and how you will spend time with your children. Family law solicitors, and mediators, can help formulate these arrangements.
It is also important to note that leaving the family home can also impact the dynamics of the negotiations and proceedings. For example, if the family home is to be sold – it will be the spouse or former partner who is occupying the family home who will be responsible for facilitating viewings and this could give them more control over the marketing process, which may not be welcome.
If I move out of my home, will I jeopardise my divorce settlement?
It is common to worry that leaving your spouse as the sole occupant of the family home will increase their financial interest in it and minimize your own. However, moving out from the family home does not affect the legal interest you have in the family home. The property remains a matrimonial asset which will need to be considered as part of the financial settlement relating to your divorce, and be apportioned, based on the section 25 criteria listed in the Matrimonial Causes Act 1973.
What if my ex and I are unmarried and I move out?
There are fewer legal safeguards in place for an unmarried couple who separate. The ownership of the property is determined by the legal title and if both partners’ names are on the title deeds as joint owners or tenants in common in equal shares, they typically have equal rights to the property, regardless of financial contributions. Alternatively, they may have unequal shares in the property protected by way of a declaration of trust. A declaration of trust can prevent uncertainty by specifying who will be entitled to what, should the relationship end. If you are the sole owner of the property but cohabiting with a non- owning partner you may wish to protect your sole proprietary interest by having a solicitor draft a cohabitation agreement to clarify that your partner has no rights in the property, and creating an obligation for them to vacate within a certain timeframe, in the event of a separation.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
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