Going through a separation can be extremely emotional and stressful, especially if the split has not been amicable, so in many cases it’s common for one spouse to move out of the marital home.
Given the family home is often one of the most valuable financial assets within a marriage, it is also one of the most contested during divorce proceedings, so we’re often asked what happens to the matrimonial home on divorce if one spouse moves out.
Here, director and family law specialist David Connor explores a person’s legal right to a matrimonial home following separation, and what can be done to protect these rights.
Should I stay or should I go?
Many clients become anxious and confused about the position with the matrimonial home when separating from their spouse, and at some point a decision will be made to either stay or leave.
There will be a variety of factors to consider which will help determine the outcome, so seeking legal advice at the earliest opportunity is vital to help protect your position.
Instances of domestic violence
Any history of domestic violence including abusive, coercive control, economic abuse, online abuse, threatening behaviour, emotional abuse and physical violence is a key factor which needs to be taken into consideration.
In circumstances where there is a history of domestic violence you should take steps to obtain an injunction to help prevent this behaviour, as well as excluding the abusive spouse from the house. The police can also help in these cases.
The best interests of any children
While it’s wise to be cautious, it’s important to know that moving out of the family home will not affect your right to it on divorce.
The marital property will be included in the financial claim as part of divorce proceedings. These types of claims don’t take into account whether one or both parties, as well as who, is currently living in the home, so keep in mind you won’t lose your share of the property by moving out.
The division of assets during divorce is usually based on the financial needs of each person. If a decision cannot be made between the separating parties, the interests of any children will always be the primary concern of the court when deciding what to do – including the transfer or sale of the property.
In cases where children are young, the house may be close to their school and circle of friends, so it’s important to keep this in mind while also ensuring they are able to spend quality time with the parent who moves out.
Can we both stay there?
While it’s quite rare, some separated couples who are still amicable choose to stay living together in the marital home until divorce proceedings are finalised and assets divided.
The benefit of this is that it saves incurring the extra living costs of living apart. It may help with the long-term decision making and keeps disruption to the children’s living arrangements to a minimum, while it may also give you the opportunity to talk about the long-term requirements of both parties with a view to a final financial settlement.
The house is in the sole name of the other party – does this make a difference?
While you remain married, each spouse has the legal right to occupy the matrimonial home, even if it is in the sole name of just one party.
As the house is a matrimonial asset, it makes no difference in whose name the legal title is, however you may need to register these rights with HM Land Registry to prevent any attempted sale of the home without your knowledge.
Where the property is in the sole name of the other party, the right of occupation lasts until the marriage ends, meaning the property remains a matrimonial asset.
Can I access the property if I’ve moved out?
Access to the home is a sensitive issue. While the law gives the right for all parties to enter the home without restrictions if the property is jointly owned, it is best for the person who has moved out of the marital home to respect the right to privacy of their spouse.
Given the financial value of a home, it’s quite common for both parties to attempt to keep hold of the house in the final settlement of a divorce, and although you do still have a right to the property while separated, sometimes by leaving the house you may give the other party a better chance of keeping it in the final settlement.
Given the complexities of the law surrounding marital homes on divorce, seeking specialist legal advice from the outset is vital.
David Connor is a director based at WHN’s Rawtenstall office who he leads and manages a team of experienced and dedicated family lawyers, dealing with all family law matters and working on cases where specialist knowledge is required. He also often deals with financial cases where there are significant assets or cases concerning complex business matters. To contact David, call him on 01200 408300 or email david.connor@whnsolicitors.co.uk
