When a relationship breaks down, one of the first practical questions many people ask is whether they can leave the family home (or whether they can require their spouse to leave). The decision can be emotionally and financially complex, and the answer depends on several factors. Here’s what to consider before making that decision.

Firstly, it is important to note whether or not you are married. This article applies to spouses and married couples separating. For cohabitees, please see our separate insights here and here.

Do I lose my rights if I leave?

In most cases, no.  Moving out does not mean giving up your legal rights of ownership or occupation of the family home.

Who has the right to stay?

If the family home is jointly owned or rented in both names, generally speaking both parties will have an equal right to live there, regardless of who paid the deposit or pays the bills.

If the property is in only one person’s name, the other spouse may still have a legal right to occupy it due to their status as a married person. Where applicable, these “home rights” can be protected by registering a notice with the Land Registry.

There is no requirement in family law that either party must remain in the home until the divorce is final. Some people choose to stay to maintain continuity for children, and many families cannot afford to buy or rent a second property, whilst others move out to reduce tension. The key is to think carefully before making a permanent decision.

While you’re not legally obliged to stay, moving out too early can complicate matters.

Strategic implications of moving out

You don’t automatically lose your right to return to the property just because you move out, but leaving can have strategic implications for any future financial settlement or decisions about children.

The circumstances under which you leave – including timing, communication, and financial arrangements – might affect your long term financial and child arrangements.  For example. where you choose to live, immediately after you and your spouse have called time on your relationship, and how often you see your children, could impact on how your long term housing needs and those of the children are determined.

For example:

• Child arrangements: If your ex remains in the home and becomes the parent with whom the children primarily live, this might influence the court’s view of the children’s ‘status quo’ and impact on the long term living arrangements.
• Occupation of the home: If only one person stays, they may argue a greater need to remain there long term, especially if it suits the children.
• Running costs: If you move out, and start paying for alternative temporary accommodation, your former spouse may place you under pressure to continue meeting the running costs of the family home.  This may be unaffordable and could impact on how your assets and income are shared on divorce.

Should I rent or buy elsewhere?

Purchasing or renting temporary accommodation may be necessary to protect you or your children from a risk of harm.

If there is abuse or high conflict in the relationship, you may be able to apply for an occupation order to exclude your ex-spouse or secure your right to stay, even if they own or rent the home in their sole name. Safety should always come first.

If you wish to vacate and you can afford to rent or buy another property before you have obtained a legally binding financial order on divorce, it is important to seek legal advice first.

Owning a second home before the financial settlement is finalised can trigger unintended consequences:

• The court may treat your new property as meeting your housing needs, reducing your claim on the family home.
• Your available capital may be taken into account in dividing the overall asset pool, with you therefore likely to be receiving less than otherwise.
• There will be tax consequences.

 However, taking practical steps, such as creating stability for the children, should be weighed against the financial considerations and what is important for your family’s wellbeing. 

In every case, if there are children, the court will place their needs first. 

What about the long-term outcome?

It is possible that a party who chooses to vacate the property at the time of separation will ultimately be able to return to live there and secure the property as their long term home.  Ownership and occupation of the family home will usually be negotiated as part of the final financial settlement in the divorce.

Whether the house is sold, and if so when, will be questions for you or the court to determine.

Top Tips Before Moving Out

• Take legal advice before changing your living arrangements.
• If you’re moving, try to agree any interim financial arrangements in writing.
• Consider the impact on any child arrangements.
• Keep records of payments made towards the family home.

Need advice?

Whether you’re thinking of moving out or you’re questioning your rights to stay, it’s wise to get legal advice early. Our team can help you understand your rights, register your home rights if needed, and guide you through options to protect your housing position during separation. Please contact us.