Leaving the marital home before divorce

Sometimes leaving the marital home before divorce is a practical step.  There are obvious reasons why this is right for some families. Where there’s tension and conflict it can be sensible for one half of the couple to seek to remove themselves from that environment and couples need to consider what is in the children’s best interests as a priority.

However, in less acrimonious situations or for practical purposes, some couples may decide to remain living together in the family home. During the current cost of living crisis, some separated couples have no choice and they find themselves having to live together out of financial necessity.

Occupation orders

As to the question of whether you must move out of the marital home before divorce, the answer is: no, unless there is a court order saying you must. The court is able to make an order, known as an occupation order, to regulate who can live in the family home, or certain parts of it, and compel the other party to leave.

An occupation order can exclude a person from the surrounding area around the home in some cases. It is often applied for in circumstances where there has been domestic abuse. If you are looking to obtain an occupation order, you should seek help from a family law solicitors as soon as possible.

Ownership and occupation of the marital home before divorce

Where court orders are not involved, legal ownership of the property and married status provide layers of security. If you own the property outright, you’re entitled to live there. If you and your wife own the property jointly, you both have the right to live there.

Even if you don’t own the property outright or jointly, as one half a married couple you have ‘home rights’ – the legal entitlement to continue living in the property at least until your divorce is finalised. Note that home rights must be registered at the Land Registry.

Important considerations prior to leaving the marital home before divorce

Although you may not be in a position where you can be forced to leave, you may decide to leave voluntarily. However, you should think this through carefully and ensure you obtain legal advice before acting.

Aside from the practicalities of finding somewhere else to live, and the potential cost of being responsible for two properties, you will need to consider the arrangements for the children now that you are no longer living under the same roof, including potential obligations in respect of child maintenance.

It is wise to agree terms with your spouse, including when and how you’ll spend time with your children. Family law solicitors, and in some cases mediators, can help formulate these arrangements.

Will leaving the marital home before divorce jeopardise my divorce settlement?

This is a common fear. People worry that leaving their former partner in the property will boost that person’s rights over it at the expense of their own. Moving out during a divorce doesn’t extinguish the legal interest you have in the family home.

The property remains a matrimonial asset which will need to be divided (and there are various ways this can be done) as you work towards the final divorce settlement.

We understand that leaving the family home is a big step and is and not something to consider lightly. For unmarried couples, there are fewer legal protections and ensure that you seek legal advice at an early stage.

Navigating separation and divorce involves complex decisions and discussions. While it marks the end of one chapter, it also signifies the beginning of a new phase in life. Having a reliable family lawyer by your side can provide invaluable support and guidance throughout this journey.