Common divorce questions: Will I lose my legal rights to the family home if I move? – Divorce


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As family law lawyers, we are frequently contacted by people going through a separation or divorce who fear that if they leave the family home, it could impact their legal rights. Rebecca Patience and Hannah Pinder from our Divorce and Family Law team explain an individual’s rights in these circumstances.

For couples who are breaking up, the decision for one of the partners to leave the family home can be a significant gesture, both practically and emotionally, as it can signal the beginning of a separation and a possible divorce.

By moving, will I lose my rights related to the family home?

The law clearly states that the family home should be treated as divisible matrimonial property, whether it is held in common name or in the single name of one of the parties. Claims can be made against the equity held in the property by either spouse. It’s not always relevant who contributed to the purchase price of the home or whether one party paid more for the mortgage than the other.

As a direct result of the marriage, claims can be made regarding the family home and this right continues even after you have left the family home.

If I leave the family home, can my spouse change the locks?

If the family home is held in common name, your spouse cannot exclude you from ownership without a court order. Although your spouse can arrange for the locks to be changed if you move, if you are a co-owner of the property you have the right to return and access the property.

This can be a sensitive matter and we strongly recommend that you seek legal advice before changing locks or breaking into a property in a situation where the locks have been changed. If the property is held in the sole name of your spouse, you may still have occupancy rights.

We recommend that you seek urgent legal advice if your spouse has changed locks and denied you access to the family home.

Will I still have to pay the mortgage if I leave the family home?

Choosing to leave the family home can make it difficult to meet the costs of finding alternative accommodation and contributing to the mortgage on the family home. From a legal point of view, if you and your spouse both own the property and you are both named borrowers, you will both remain jointly and severally liable for any mortgage repayments, even if you choose to leave the family house.

This does not necessarily mean that you have to pay half of the monthly repayment and your contribution can be discussed with your spouse, but you will both be jointly and severally responsible for paying off the mortgage in full.

What arrangements can I make with my children if I leave the family home?

The emotional impact on children following a separation cannot be underestimated. For this reason, it is advisable not to leave the family home until formal arrangements have been made as to when and how often the children will spend time with you once you have moved out.

If it is preferable to agree before leaving the house, it is not always possible. If you are having difficulty reaching an agreement regarding arrangements for the children, we recommend that you consult a lawyer.

See also our advice for parents who wish to have and maintain contact with their children.

My spouse and I are separating, can we both continue to stay in the family home?

While there are obvious practical benefits to continuing to live in the family home, especially if you have children, this is usually only feasible if you and your spouse are on relatively good terms after the relationship breaks down.

In some cases, spouses may choose to stay together in the marital home until the divorce is finalized and financial issues are resolved. This is a personal decision, if the relationship is not healthy between you and your spouse, you might consider making arrangements to live differently knowing that your financial claims on the equity in the family home will not be lost.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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