Separation & Property
Separation can be an extremely difficult and stressful time – having to navigate your way through not only the emotions of your relationship ending but also the practicalities of what the separation means for you and your family.
Unfortunately, the question of future living arrangements generally serves to exacerbate this stress, with many people refusing to leave the home due to the belief that it will in some way effect their rights to it.
So what exactly are the implications of leaving the home at separation, who has the right to stay and what are your rights if you decide to leave.
Firstly, it is important to understand that no one has to leave the home when parties separate. Whilst it is common for people to want to put space between themselves and their former partners as part of the separation process, you are not legally required to and it is possible for people to continue to live separately, under the one roof.
It is also important to note that if you decide to continue living under the one roof after separation, this does not impact your ability to obtain a divorce after you’ve been separated for 12 months – you will, however, need to provide evidence to the Court that you were actually separated during this time.
If the thought of continuing to live in the same house is not appealing, then you and your partner will need to agree on whom is to leave. In family law matters, it does not matter whose name a property is registered in or who signed the lease, neither party has the “right” to stay over and above that of the other and without a court order in place, you cannot force your ex to leave.
The situation is a little different in circumstances of family violence and it is important to contact the police immediately if you believe you or your children’s safety are at risk.
Rest assured, if you decide to move out of the family home this will not impact your ability to claim an interest in the property as part of any financial settlement between you and your former partner. It can, however, make retaining the home as part of the settlement more difficult (although not impossible) and it is therefore important to consider whether or not this is something you are wanting prior to making any decisions.
It is also important to note that leaving the home does not necessarily mean you are no longer required to contribute to the mortgage/rent payments in respect of that property. Separated couples have a legal obligation to financially support one another following separation (insofar as they are able to) and, depending on you and your former partner’s respective financial circumstances, this may mean that you are required to continue to meet mortgage repayments, utilities and other outgoings in respect of the home even if you’re no longer living there.
Similarly, if you cannot afford to move out but the living situation at home is untenable, your spouse may be required to meet various costs associated with you finding alternate accommodation. This is something that is determined on a case-by-case basis, however, and it is therefore important to get advice from an experienced family lawyer before making any decisions in this regard.
If neither you nor your ex are willing to leave the home, it is possible for the court to grant a party “sole use and occupation” – that is, the exclusive right to live in the house on an interim basis. Given that removing someone from their home is a very serious matter, these orders are usually made in circumstances of family violence. If, however, it is not appropriate for you and your former partner to continue living under the one roof and you require ongoing access to the property (as opposed to it merely being more convenient), it might be worth considering making an application to the court for sole use and occupation.
Finally, if you do leave, it is also a good idea take your personal belongings with you to avoid any future problems in having them returned.
If you need help working out how to make this important decisions, don’t hesitate to contact us.