When a marriage or common-law relationship ends, decisions need to be made with respect to living arrangements for the former partners and their children.
One very important decision – “Should I leave home after separation?” – can have significant consequences and should be made carefully.
This post will review some of the factors for consideration when deciding if you should move out of the home after separation. It is always the best option to get legal advice when making the decision about who should move out, particularly if you want to know how the decision may impact your legal rights to your share in the home; have questions about who is responsible for paying the household expenses such as the mortgage or rent, utilities and taxes; or have concerns about parenting arrangements. If you need help with move forwarding during a difficult time in your life, contactour experienced family lawyer today.
Factors to consider when deciding if you should leave home after separation
Here are some important considerations that may help you make the decision about whether you should leave home after separation:
1. Neither of you has to move out for you to be separated.
The date of separation is important to eligibility for obtaining a divorce, as one ground to obtain a divorce is if you and your spouse have lived separate and apart for one year. That being said, spouses can live separate and apart while continuing to reside under the same roof. For example, it may be that you and your spouse continue to live in the same house after separation for financial reasons or for the benefit of your children.
2. Moving out will not cause you to lose your share of the family home.
If you have a legal right to a share in the family home, moving out will not cause you to lose ownership rights or rights to a share in the value of the home. However, you should consider the fact that if you move out of the home and your former partner stays, it may later be difficult to convince the court you should be allowed to move back into the home.
3. There are options to protect your interest even if the family home is not in your name.
If the family home is in only your spouse’s name, you can take steps to protect your interest in the property:
• If a court action has been commenced in your family law dispute, a “certificate of pending litigation” or “CPL” can be registered against title to the property under the Land Title Act to protect your interest. A CPL will prevent the property from being refinanced or sold without notice to you.
• If a court action has not yet been started in your family law matter, a “charge” can be filed against the property under the Land (Spouse Protection) Act which operates in the same way a CPL and will prevent your spouse from refinancing or selling the property without notice to you.
It is important to emphasize that the options above apply only if the family home is owned and are not available to those who live in rented accommodations. If you and your partner are living in a rental, the question of who moves out may come down to whose name is on the rental agreement, unless arrangements can be made to transfer the agreement into the name of the party who is staying in the rental.
4. Whether the property is owned or rented, it is possible to get a court order to make your partner move out.
Where there is disagreement about who should be the one to move out, the court can make an order giving a spouse “exclusive occupancy” of the family home. In BC, an order for “exclusive occupancy” is made on application to the court under the Family Law Act and will grant one party exclusive possession and use of the family home on a temporary basis. These types of orders are often sought where there has been family violence or the risk of it, but that is certainly not a prerequisite. Rather, the test for an order for exclusive occupancy requires you to prove (i) that it is a practical impossibility for you and your spouse to remain together in the same home, and (ii) that it is more convenient for you to remain in the home than for your spouse (i.e., that you are the preferred occupant).
Speak to an experienced family lawyer when deciding if you should move out
When deciding whether you should leave home after separation, you need to know your legal rights and understand the consequences of your decision. There can be extremely important personal and financial implications of the decision you make. The factors for consideration discussed above only scratch the surface, and in some cases you may also need to know whether you can lock your spouse out, who is entitled to take personal property from the home, how to get spousal support so that you can afford living expenses, and what steps you need to take to force the sale of the family home if your partner refuses to sell.
To get legal advice and guidance in making the best decision given your unique circumstances, contact Valerie M. Little Family Law Corporation. Ms. Little's practice is exclusively devoted to issues of family law in Burnaby, Coquitlam, and New Westminster. No matter what family law questions or issues you might be facing, we are here to help. You will receive attentive care and understanding at the office of Valerie M. Little. For more information about how we can assist you or to schedule a consultation with our family lawyer, please call us today.
This blog is intended as general information only and is not intended to provide legal advice for any particular situation. Please consult a qualified family law professional before making any family law decisions.