Should I Stay or Should I Go? Will Leaving the Family Home Affect my Claim?

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Family lawyers are regularly asked if moving out of the family home will affect how the court deals with the property when parties divorce. It is a complex issue and one that is even more pressing now people are spending more time at home. It is essential to take tailored expert advice as every case is different. There are some important issues to consider if you are thinking of leaving the family home. I discuss below what you need to reflect upon if faced with the difficult decision of whether to stay or go.

Do we need to be living separately to be divorced?

It is important to note that, in order to obtain a divorce, you must show that your marriage has broken down irretrievably. This does not necessarily require you to physically be living in separate properties once the marriage has broken down. It simply requires you to live your lives separately. If you are relying upon two years separation as the ground for divorce and you continue to live in the same property after the separation has commenced, the court will require you to provide information to show that you are sleeping in separate rooms, making separate contributions to the household and childcare and that you are not continuing to live as you were prior to the separation. Given the intricacies of these statements, it is worth obtaining advice before drafting a divorce petition.

The risks of remaining in the home

It is important to know how the court will consider an application to exclude a party from the family home if there is a risk of harm to a person or their children if they remain. The Court must weigh up any risks of harm against the impact a move would have on the children. The Court would also need to consider the affordability of living separately before all of the financial and children issues have been dealt with. I explore these issues further below.

The court will be keen to ensure the health, safety and wellbeing of any child as its paramount concern. If however, it is considered to be safe for both parties to remain in the family home, or there are promises given to the Court to ensure it is safe, it is unlikely that one party would be ordered to move out of the property before a final financial order is made . It is important that you consider any risks of harm and take advice if you are concerned about the impact of you or the other party remaining in the home.

What impact will the move have on the children?

Parents are often advised not to move from the family home until arrangements for the children have been agreed. This may not always be the case, but it is important to consider at an early stage when the children will be living or staying with each parent in the future and how the child arrangements will fit in with any work or other commitments you both have. If you are concerned that it will be difficult to agree arrangements if you are not present in the family home, you may want to consider mediation or other alternate dispute resolution to discuss these issues prior to either of you moving out.

It is also worth considering the convenience and arrangements for the children’s schooling and how best this can be managed should one parent move. The court will usually look at the primary carer (if there is one) as part of any claim for finances as the children’s need to be housed may or may not be met by remaining in the home if this is affordable. It is important to consider long and short term positions carefully and take expert advice.

Can you or the other party afford to live separately at this stage?

This question is often the most difficult as it involves an initial analysis of the costs of running two households at what can be a very early stage in your separation. If you own two properties, it may be that one of these may be available for you to move into. Your solicitor will be able to assist you in preparing a budget and considering this against yours and your ex partner’s income and outgoings before seeing if an agreement can be reached as to who is best placed to move out and if this is possible.

Here to Help

If you are thinking about leaving your family home and need advice about divorce, get in touch with Tracey Dargan, Partner and Head of Divorce and Family, on 01992 300333.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.