Who stays in the family home after separation?

When a marriage breaks down, living arrangements are often at the top of the consideration list. Whether you should, and can, remain in the family home depends on your individual circumstances, including marital status and whether you rent or own the home.

Living together whilst awaiting a divorce settlement is often not an option, particularly where there are safety concerns, conflict or it’s not in the best interests of children. However, there are a number of factors to consider before making a decision to stay or go.

In this blog post, we break down some of the most frequently asked questions we receive on this topic and the best course of action depending on your situation.

Can I make my spouse move out after separation?

Married couples usually have a right to remain in the family home regardless of whether they are named on the title deeds. This is because spouses are entitled to ‘matrimonial home rights’, which protect the right to stay in the home even if you are not listed on official documents.

As such, whilst you can ask your spouse to move out, you generally cannot force them to unless you have a court order.

Rights to the family home for unmarried couples

For cohabitees, it’s a slightly different story. If you are not married, you still have a right to stay in the property if you are named on the deeds or tenancy.

If you are not named on the title deeds or tenancy agreement, you may have limited rights to remain in the property. Whether you have any beneficial interest in the property will depend on the facts of the case. In some circumstances, you may be able to apply for an occupation order.

What is an occupation order?

If there is a dispute about who should remain in the family home, you can apply to the family court for an occupation order, which temporarily determines who can live there. Whether your partner is refusing to leave or is trying to make you vacate the property, when considering an occupation order, the court will consider all the circumstances of the case, including the housing needs and financial resources of the parties, the needs of any children and the likely effect of any order on the health, safety and wellbeing of those involved. In some cases, the court must also apply the "balance of harm" test.

If you are experiencing domestic abuse, coercive control or threatening behaviour, an occupation order can be used to prevent your partner from entering the home or surrounding area. In these cases, an occupation order may be granted alongside a non-molestation order, which is designed to protect a person or child from harassment, intimidation, threats, violence or other forms of abusive behaviour.

What to do if your partner is trying to make you leave

If your spouse solely owns or rents the property, you can register with the Land Registry for matrimonial home rights to protect your right to remain in the home and to prevent the property from being sold without your knowledge. Once protected, matrimonial home rights will normally continue until the marriage is legally brought to an end or the court makes an order affecting those rights.

If you are unmarried, these rights do not apply and you would need to seek an occupation order if you are not named on the deeds or the tenancy.

Will leaving the family home affect my financial settlement?

It’s a common misconception that if someone opts to move out of the family home, they give up their financial interest in it. Regardless of whether you remain in or leave the property, it will remain relevant to the financial settlement and the court can still take the property into account when determining how assets should be divided.

Practical points to consider before leaving the family home

When deciding whether to leave the family home, it’s important to consider the practical and financial implications. These include whether you can afford to run two homes, who is going to pay the mortgage and child arrangements. Where children are involved, the practical arrangements for their care often play an important role in determining who remains in the family home on an interim basis. The court's primary concern will always be the welfare of the children.

Before making a decision, it is advisable to seek advice from a family law solicitor who can help you understand your position.

How Maguire Family Law can help

Our team of experienced family lawyers can help you understand your individual situation and the options available. Whether it's registering your rights, applying for an occupation order or talking to our specialist mediator to find a way forward, we can support you in taking the next step.