It is easy to think of separation as exactly that: a breakdown of the relationship and therefore a physical separation as one or both parties move out of what was once their family home.
Sometimes, however, that matrimonial home becomes a battleground as ex-spouses decide to separate but then cannot agree on who should move out.
This can cause all sorts of problems in the already difficult and stressful time of separation and divorce.
It is not necessary for former spouses to stop living together after deciding to separate, and some people may choose to continue living separated under the same roof for quite some time.
This does not work for the majority of separated couples, and many find that creating physical distance and starting to live independent lives makes the separation process easier.
But what happens if your ex refuses to move out of the house?
FAQ Rights to the house during Separation
Question: Who gets to stay in the house during separation?
There is no presumption as to who can stay in the house during separation.
In most cases, who is on the lease or who is on the title of the house will not be important as to determine who gets to stay in the house during separation. That is because family law has different principles than commercial law.
Without an order from the court, you cannot kick your spouse out of the house.
Question: What are my rights if I leave the marital home?
If you leave the marital home then you still will be able to claim your portion of the marital home during your property settlement.
Question: Who has to leave the house in a divorce?
You are not forced to leave the house in a divorce unless there is a court order in place.
Question: Who has rights to all of the property after separation?
Rights to the property after separation will depend on what occurs during your property settlement. If you have personal belongings that you want to retain, we strongly recommend that you retain possession of these items to avoid them being retained by your ex.
In the event of a family law separation, both parties are legally entitled to live in the family home.
It does not matter whose name is on the ownership of the house.
There is no presumption that the wife or the husband has to leave the house.
One party cannot force the other to leave, and a person is not required to leave the house just because the other wishes it. Under the law, you cannot kick each other out.
If there are no safety concerns, if no court orders have been breached and if there is no kind of crime taking place, the removal of one occupant from the residence cannot be enforced by the police either.
Normally, one party decides to leave the property to alleviate what may potentially be a stressful situation.
In circumstances of domestic violence, the situation is treated differently.
Contact emergency services or the police if you or your children are at risk of being harmed.
Occupancy orders are sought under section 114 of the Family Law Act 1975.
This section of the Act gives the court the power to make injunctions, including “an injunction relating to the use or occupancy of the matrimonial home.”
An injunction is a court order that prevents someone from performing or requires someone to perform, a particular act.
A person may seek an occupancy order in the Family Court or in the Federal Circuit Court.
Enforcing the exclusion of a party from the family home is considered a very serious matter by the court.
It is most often ordered when a person is in danger.
A person wanting sole occupancy of a shared home may obtain an exclusive occupation order.
If granted, their former spouse would be in breach of the order if they stayed in the home and is therefore legally required to leave and live elsewhere.
This means they will not have access to the marital home during separation.
In the case of domestic violence, this order can also be sought under the Domestic and Family Violence Protection Act 2012 in the Magistrates Court.
When determining an application for an occupancy order, the court will make their decision based on two points:
- Should the property be occupied by one party; and
- If so, which party should leave the property.
The person seeking the injunction is responsible for establishing their case for sole occupancy.
The court must decide that it is “proper” to make an exclusive occupation order.
This means determining whether or not it is reasonable, sensible or practical to expect the parties to remain living in the one home.
As part of this, the court will also decide whether the order is necessary or whether it is simply being made for convenience. Access to the marital home during separation may be an important requirement for certain people and less important for others.
There are several points that come under the determination of an exclusive occupation order as “proper.”
The court will assess:
- The needs of any children of the relationship
- The means and needs of both former partners, including their income and financial situation, the existence and availability of alternative accommodation, and to what extent the home is a significant part of any business that a party owns or runs
- The hardship to either party and the hardship to any children
- The conduct of the parties
- Any physical assault or violence against one of the parties
An occupancy order is granted when the needs of the applicant are judged to be clearly greater than those of the other party.
The applicant, once successful, is able to live in the house without their spouse until the property has been divided in the finalisation of a divorce.
Former partners might eventually be able to decide who is leaving the home without the intervention of the court. For the person leaving, their entitlement to a share of the property during divorce proceedings will not be affected.
If your spouse is abusive or if you fear abuse or violence, it is important to seek advice immediately.
In terms of exclusive occupation orders, it is highly likely the court will grant an applicant their occupancy order if their partner is making threats against them, especially if any children are affected.
Leaving an abusive relationship is particularly hard, but help is available.
As it is a crime, domestic abuse is dealt with in the Magistrates Court. This includes occupancy orders that involve violent or threatening situations.
However, the Family Court and the Federal Circuit Court will manage other aspects of separation and divorce.
An Apprehended Violence Order (AVO) can be made against a spouse or former spouse to protect you from violence, harassment and intimidation.
The court can add different conditions to restrict the other person’s behaviour, such as prohibiting them from coming near or going into places where you live or work.
For most couples, separations are difficult times that involve significant emotional stress.
There may often be open hostility between ex-partners, and this can build up further and further if both people cannot agree on who should leave and who should stay in the matrimonial home.
This type of conflict, whether it is explicit or conveyed more through silence and coldness, can have a serious impact on children in the household.
Young children in particular are less able to understand the situation, and they can quickly feel the emotional stress.
Trying to come to an agreement about who should leave the home is often complicated because of children of the relationship.
Generally, neither party wishes to stop spending as much time with their children.
A lack of agreement on child custody after separation and in the process of a divorce will often mean going to court to settle that issue as well.
A proven determination to stay in the family home with the child or children may influence future custody hearings.
In the event of one ex-spouse eventually moving out of the family home, they may be required to pay child support if they are they are the party spending less time with the children.
Financial issues can become a major problem in the event of separation and divorce, and, after deciding who moves out of the house, one party may also be liable to pay spousal maintenance.
Finding a new place to live can create a lot of financial strain, and if appropriate housing is more expensive than a person can reasonably afford, their ex-partner may be required to pay them financial support.
On the other hand, the party staying in the family home will in most circumstances become the primary carer of any children.
This will reduce their income earning capacity and therefore their former partner may be ordered to pay spousal maintenance.
Spousal maintenance is different from child support, which is paid expressly for the benefit of the children.
Both ex-spouses have an equal legal responsibility to support and maintain each as far as they are able, based on their own income.
The amount of financial support paid is dependent upon the income and financial resources of the paying party.
If cost is a key problem in who stays in the family home and who goes to live elsewhere, a final result may involve one party paying spousal maintenance.
In one 2015 case, the Family Court granted a woman’s request for sole occupancy of the matrimonial home.
The applicant sought exclusive occupation of the home for an interim period of one month during court proceedings.
She made the occupancy order application on the main basis that she had been the victim of an incident of domestic violence.
Even though an Apprehended Violence Order application made in the local court had been dismissed, the judge made it clear that this did not mean such allegations would be dismissed in the Family Court.
The husband, who is the respondent to this application, owned several other residences, whereas the applicant was only able to continue living in her current home.
The judge deemed it appropriate that the woman live in the family home with her 15-year-old daughter for the interim period of one month.
The husband was not to enter or seek to reside in the home for that time and was required to make arrangements with his wife’s solicitors if he wished to collect any personal items from the residence.
FAQs
Do I have a right to stay in the marital home? ›
Where the home is in one person's name only, the other may still be entitled to stay, even if the owner objects. If the couple are married, the spouse not named as owner still has a right to stay in the marital home and 'occupy' it. They can register their Matrimonial Home Rights with the Land Registry.
Can I legally enter my house after separation? ›Your rights if you have moved out
The law is quite clear that where the property is jointly owned (ie, held by the two parties in joint names) each of them is permitted to enter that property without conditions. This is the case even if one of them has moved out following their separation.
Your Rights to Property If You're Getting Divorced
Regardless of who owns the marital home, both parties will have a legal right to it after separation. If, for example, the mortgage is in your name and your partner contributed to bills, both have rights to the property after you separate.
You can usually only live in the property until the divorce, annulment or dissolution has been finalised and a court settlement agreed.
What happens to the family home in a separation? ›It is often the case that the family home will remain in joint ownership until the children reach adulthood. This can apply to both separated spouses and divorced spouses. In these circumstances, it is likely that one of the spouses will have lived outside of the family home post separation/divorce.
What should you not do during separation? ›- Keep it private. The second you announce you're getting a divorce, everyone will have an opinion. ...
- Don't leave the house. ...
- Don't pay more than your share. ...
- Don't jump into a rebound relationship. ...
- Don't put off the inevitable.
If I am separating from my partner, can I change the locks on the family home? Yes, you can change the locks on the house if the property is legally owned in just your name, but not if it is owned jointly with another person.
Can I change the locks if my ex moves out? ›For cohabiting couples
If you lived together and were not married, then it is important to establish who legally owns the house. If you own the property in your sole name, you are entitled to change the locks once your former partner has moved out.
The short answer is “no.” You do not legally have the right to change the locks on a house and prevent your wife from re-entering the home under such circumstances.
What are matrimonial home rights? ›Matrimonial Home Rights aim to protect the party who does not have a legal ownership in the property, against eviction, during a divorce or breakdown of relationship. It is important that a party who has matrimonial rights registers them if faced with this situation, to allow them to continue residing in the property.
What is a home rights notice? ›
The purpose of a Home Rights Notice is so that the non-owning spouse can put a Notice on the title deeds stating that they have Home Rights in the property. The impact of this is that the property sale cannot go through unless that Home Rights Notice has been removed.
Can my partner make me sell the family home? ›Can my ex make me sell the family home? No. If both of your names are on the deeds to the property, they cannot sell without your permission.
Does a husband have to support his wife during separation? ›…a person has a responsibility to financially assist their spouse or former de-facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets. Where the need exists, both parties have an equal duty to support and maintain each other as far as they can.
Should I leave family home when separating? ›It is always advisable for someone who is in the process of separating and contemplating leaving the family home to seek specialist family law advice before doing so. However, the reality is, if you and are and your partner are separating, either of you (or indeed both of you) will permanently leave the family home.
Can I force my husband to leave the house? ›In California, it is possible to legally force your spouse to move out of your home and stay away for a certain length of time. One can only get such a court order, however, if he or she shows assault or threats of assault in an emergency or the potential for physical or emotional harm in a non-emergency.
Can I be forced to sell my house in a divorce? ›In summary, the court can force the sale of your house on divorce, and will usually do so if it considers that the other party is entitled to a share, and you are unable to buy them out.
How do I keep the family home in a divorce? ›In many cases, the simplest way to keep the house in a divorce if it still has a mortgage is to refinance. The best-case scenario is for you to refinance and remove the mortgage from your ex's name altogether. You'll need to qualify for the mortgage on your own, so make sure to have all your financial ducks in a row.
When should you give up on a separation? ›Statistical research shows that the average length of separation before reconciliation is six to eight months. Thus, it is a safe period when the spouses can cool off and decide whether they want to give their marriage another chance or get a divorce.
What is the first thing to do when separating? ›- Step 1: Confirm Your State's Residency Requirements. ...
- Step 2: Move to File for Separation Petition. ...
- Step 3: Move to File Legal Separation Agreement. ...
- Step 4: Serve Your Spouse the Separation Agreement. ...
- Step 5: Settle Unresolved Issues. ...
- Step 6: Sign and Notarize the Agreement.
As long as you are living apart, and abide by any legal agreements, dating while separated is legal. However, dating while separated may have emotional implications that may impact the quality of life for your entire family for years to come.
Is dating during separation considered adultery? ›
However, legally, until the court declares your divorce as final, you are still married to your spouse, which technically means that relationships you engage in outside the marriage are technically still considered adultery.
Is locking someone out of the house abuse? ›Physical abuse includes being held or tied down, locked in a room and kept from leaving, being locked out of the house or left in a dangerous place.
What happens if I change the locks on my husband? ›Changing the locks on the family home so your husband doesn't have access is not a viable solution to domestic unrest. He can call the police -- and the authorities will likely inform you that unless you have a court order granting you the exclusive right to occupy the home, you must let him back in the house.
Can my husband change the locks on our home? ›In a nutshell, no you cannot change the locks without either permission from your spouse or an special Order from a judge. If your home is a matrimonial home, under the Family Law Act, regardless of the ownership, both you and your spouse have an equal right to possession of the home.
How long do I have to keep my ex partners belongings? ›Depending on where you live, an ex can be given from 30-60 days to retrieve their belongings. While 30 days should be considered a minimum deadline, you should not set a deadline for less than 30 days. This is considered to be ample time for an ex to remove their possessions.
Can my ex kick me out of my house? ›The answer to both of those questions is no. If you have lived at the home for a period of time, then you are considered a tenant and an occupant of the residence. This means you have a legal right to be in the residence and your partner cannot simply go get a no-trespass order to keep you off the property.
How much does it cost to change the locks on a house? ›Expect to pay $80 to $300 per lock, depending on quality, and up to $200 more for professional installation. Many door locks, however, are DIY-friendly and come with installation instructions.
Can a joint tenant change locks? ›If the property is jointly owned then you cannot change the locks without the agreement of the other person. Both of you have a right to access and to occupy the property. If only one of you owns the property then the owner is entitled to change the locks.
Can my ex dictate who is around my child UK? ›You may or may not be able to stop the other parent's significant other from being around your child. In general, you do not have the power to dictate which adults are around your child when they are with the other parent. When you have your child, you can decide who is present.
What is Section 33 5 of the Family Law Act 1996? ›However, section 33(5) of the Family Law Act 1996, provides that in the event of a matrimonial dispute or estrangement, the court may make an order during the subsistence of the marriage or civil partnership, directing that the spouse's or civil partner's home rights shall continue even though the marriage or civil ...
How do I register matrimonial home rights? ›
Registered property
– The majority of properties in England and Wales are registered properties. To register your matrimonial home rights, you must complete a form titled “Notice of Home Rights: Application (HR1)” and send it to the land registry.
Home rights (also known as matrimonial home rights)
The spouse or civil partner has the right to: occupy the matrimonial home and not to be excluded, except by court order[2] (if not occupying the home), obtain a court order to regain entry and to live there[3]
With all this in mind, the answer to who gets the house is still complicated, it depends on each individual circumstances. In general, the court will always put the needs of your children first, and that most commonly means the parent with full-time custody will be the one preferred to stay in the existing family home.
What is a B94 1 notice? ›A B94-1 notification is notice of application made at H M Land Registry which has the effect of preventing your friend from selling or remortgaging the property - until the financial aspect of a divorce is resolved. The status of the current tenants remain unchanged.
What happens if one person wants to sell and the other doesn t? ›Sell Your Share
That share is yours to control. If you want to sell the house and your co-owner doesn't, you can sell your share. Your co-owner probably won't like this option, however, unless they know and feel comfortable with their new co-owner.
You don't necessarily need to sell the house, if one of you has the means to buy the other out or afford to take on the mortgage payments. There are other options to consider too – or which may be imposed on you by the courts decide.
What happens if your ex refuses to sell your house? ›If an ex-spouse is refusing to comply completely, then your attorney may file a motion for contempt. This motion will tell the court that your ex-spouse was ordered to sell the house, but is willfully failing to do so.
What are my rights after separation? ›The right to stay in your home unless a court order excludes it. The right to ask the court to enable you to return to your home (if you have moved out) The right to know of any repossession action taken out by your mortgage lender. The right to join any mortgage possession proceedings taken out by your lender.
Who pays the bills when you separate? ›Just like mortgages, the repayment of any joint debts must continue after divorce or separation. Your personal life is of no concern to lenders after all. But of course, you now wish to lead separate lives and an important step toward doing so will be disentangling your finances.
Can you separate and live in the same house? ›A trial separation in the same house can work
A trial separation in the same house is possible, so long as you set the ground rules and show common courtesy to one another before you reconvene to make your decision.
What should you not do during separation? ›
- Keep it private. The second you announce you're getting a divorce, everyone will have an opinion. ...
- Don't leave the house. ...
- Don't pay more than your share. ...
- Don't jump into a rebound relationship. ...
- Don't put off the inevitable.
The spouse whose name isn't on the title deed is often the one who needs to leave the house in a divorce, which is a prevalent fallacy that can lead to unjust deals. Because both spouses have the right to remain in the house throughout the separation, neither can change the locks without informing the other.
Can I stay in my house after divorce? ›You can usually only live in the property until the divorce, annulment or dissolution has been finalised and a court settlement agreed.
What can I do if my husband refuses to leave? ›If your spouse does not agree to leave the house, the only other ways to remove them from the house is through legal action, either by calling the police, applying for a protective order, or divorce. You cannot otherwise evict your spouse from their homestead.
Can my husband make me move out? ›Both parties have a right to stay in the home. No one can force you to leave your residence without a court order unless domestic violence. A temporary orders hearing must be held to get such a court order in a divorce.
Can my wife throw me out of the house? ›In California, it is legal for one spouse to force the other to move out for a set time period. This is accomplished through a court order, but the individual must be able to provide evidence of threats of assault or assault attempts if the case is an emergency.
What are matrimonial home rights? ›Matrimonial Home Rights aim to protect the party who does not have a legal ownership in the property, against eviction, during a divorce or breakdown of relationship. It is important that a party who has matrimonial rights registers them if faced with this situation, to allow them to continue residing in the property.
Can I force my husband to leave the house? ›In California, it is possible to legally force your spouse to move out of your home and stay away for a certain length of time. One can only get such a court order, however, if he or she shows assault or threats of assault in an emergency or the potential for physical or emotional harm in a non-emergency.
Does a husband have to support his wife during separation? ›…a person has a responsibility to financially assist their spouse or former de-facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets. Where the need exists, both parties have an equal duty to support and maintain each other as far as they can.
What is a matrimonial home rights notice? ›A right to be given notice of any mortgage possession proceedings and with the court's permission to take part in the proceedings. The right for your mortgage or rent payments to be treated as that coming from the owning or tenant spouse or civil partner.
What is Section 33 5 of the Family Law Act 1996? ›
However, section 33(5) of the Family Law Act 1996, provides that in the event of a matrimonial dispute or estrangement, the court may make an order during the subsistence of the marriage or civil partnership, directing that the spouse's or civil partner's home rights shall continue even though the marriage or civil ...
How do I register matrimonial home rights? ›Registered property
– The majority of properties in England and Wales are registered properties. To register your matrimonial home rights, you must complete a form titled “Notice of Home Rights: Application (HR1)” and send it to the land registry.
If your spouse does not agree to leave the house, the only other ways to remove them from the house is through legal action, either by calling the police, applying for a protective order, or divorce. You cannot otherwise evict your spouse from their homestead.
Can my partner throw me out of his house? ›In California, it is legal for one spouse to force the other to move out for a set time period. This is accomplished through a court order, but the individual must be able to provide evidence of threats of assault or assault attempts if the case is an emergency.
Can I lock my husband out of the house? ›As a general rule, the answer is "no": Unless you have a court order excluding your spouse from the home, although you can change the locks on the marital home, you cannot prevent your ex- from returning to the home, even if that means breaking into the home, or even changing the locks again to lock you out.
Who pays the bills when you separate? ›Just like mortgages, the repayment of any joint debts must continue after divorce or separation. Your personal life is of no concern to lenders after all. But of course, you now wish to lead separate lives and an important step toward doing so will be disentangling your finances.
Who is responsible for paying bills in a marriage? ›In a marriage, it's common for one partner to handle budgeting and bill paying and another to handle all the investments, or for one partner to do all the financial tasks.
How long a separation should last? ›You and your spouse should agree on how long the separation will last. Ideally, psychologists recommend that a trial separation last no more than three to six months. The longer you spend apart from your spouse, the harder it will be for you to get back together.
Can I force the sale of my house in a divorce? ›Can a court force the sale of a house in a divorce? Yes. The court can make an order for the matrimonial home to be put on the market as part of the divorce settlement.
How do you live in the same house when divorcing? ›- Create a new budget. ...
- Allocate responsibilities around the house. ...
- Don't sleep with your ex-spouse. ...
- Establish boundaries. ...
- Plan to live separately. ...
- Don't fight in front of your children. ...
- Don't use the kids as leverage. ...
- Tip 1.
What are home rights under the Family Law Act 1996? ›
Home rights (also known as matrimonial home rights)
The spouse or civil partner has the right to: occupy the matrimonial home and not to be excluded, except by court order[2] (if not occupying the home), obtain a court order to regain entry and to live there[3]