Info & Advice

Do I lose any rights if I leave the marital home during separation?

Request a Free Consultation with a Solicitor

Tensions can run high when you are in the throes of separation and are still living under the same roof. In desperation, one of you may contemplate moving out of the family home, and very often, this decision comes from necessity, particularly if the split is acrimonious or domestic violence is present. But will doing so affect your financial position, and will you lose any rights to the property if you leave? In this article, we answer these questions, and more.

Will I lose my interest in the family home if I move out?

Leaving the family home does not affect your rights, either regarding a financial settlement or access to the property. So if you own the matrimonial home jointly with your spouse, you will not lose that legal interest if you move out. In the event, that you are not a co-owner, then you must protect your interests by registering your matrimonial home rights at the Land Registry. This protection is only available to married couples or those in civil partnerships and gives the spouse without a legal interest in the home, rights of occupation in the property pending divorce.

If you were cohabiting and are not a joint owner of the property, then you do not have any rights to the property unless you have children together. Here, you may be able to apply to court to enable you and the children to remain in the home, or have it transferred into your name until the youngest child reaches 18 or completes their full-time education. Thereafter, the property reverts to your ex-partner, and you will have to leave.

It is important to note, that it is inadvisable to simply leave the home just because your ex has demanded it. You should take legal advice first before moving out. Knowing your legal rights when separating can empower you to make better decisions and help avoid unnecessary conflict during the divorce process.

Will leaving the family home affect finances on separation?

If you jointly own the family home, you should think about whether you can afford to contribute financial towards its expenses, e.g., mortgage repayments or bills, as well as the costs of additional accommodation. If you would struggle to do both, then if your ex, who still resides in the home, has assumed sole payments on the mortgage, may argue they should have a greater share of the equity in the property. Alternatively, if your ex cannot afford to pay for the household outgoings on their own, they may be able to establish a claim for spousal maintenance as part of the divorce.

For those with children, you may become obliged to maintain them financially in accordance with Child Maintenance Service guidelines, if you move out of the marital home. In this case, you will need to weigh up whether this would be affordable given all the draws on your income.

Moving out of the family home, could, in some circumstances, result in your incurring Capital Gains Tax (CGT) liability. This is unusual, but can arise, and you should seek further advice, if necessary, from an accountant or tax specialist.

Can I enter the property when I want if I move out?

While the law gives the right for all parties to enter the home they own without restrictions, it is best for the person who has moved out to respect the privacy of the person who remains living there. Try to give them notice about when you intend to come round, or will be at the property to collect or sort through belongings, for example. If you have left the family home and your spouse is preventing you from re-entering, you can apply to court to obtain access, if necessary.

Can I change the locks on the family home?

The locks should not be changed without your ex’s knowledge or consent. An excluded spouse retains their right to regain entry and can change the locks themselves, often this course of action causes unnecessary conflict, which will ultimately be detrimental to reaching a divorce settlement. In addition, the person being excluded has the right to break into the property to gain access. Of course, there are legal limitations to this, and they cannot cause a breach of the peace or any criminal damage, for example, because they could face criminal sanctions.

Fundamentally, access to the family home is a sensitive issue and neither party should change the locks or force entry into the property without having first taken legal advice.

What if my spouse is abusive?

If there have been any incidents of domestic abuse, it may be possible to restrict someone’s right of occupation by applying for a court injunction to prevent a spouse or partner from entering the family home. You may also, in conjunction with the application for an occupation order, apply for a non-molestation injunction to prevent your ex from intimidating, harassing, or harming you. This type of order is usually accompanied by the Power of Arrest which protects you and any children if you are in immediate danger.

Points to remember when you separate and leave the family home

The main points to remember if you are thinking about leaving the former family home include:

  • If you are registered as a joint owner, you should be protected. Even so, it still pays to stay informed and keep abreast of your ex’s intentions
  • If you are married and not a registered owner, then you should be able to register your matrimonial home rights
  • If you are not married, there may be other options open to you to protect your interest in the property. In this instance, you should speak to a solicitor to see what you can do
  • If you suspect your ex intends to sell the property imminently, you should seek advice from a solicitor

Notwithstanding the above considerations, whether you are still living in the family home or have moved out generally has little or no bearing on the outcome of the divorce settlement.

Related Articles

Load More

Podcast: Listen Now