When parties separate, a very common question is, who moves out of the family home?  Another common question is, my friends have told me I need to stay in the house, is that true?

In reality, nobody actually has to move out of the family home for separation to have occurred.  It is entirely possible to be separated and living under the one roof and this is quite a common occurrence.  Sometimes it is not possible for one party to move out of the family home because of a variety of reasons, financial reasons being prime among them.  You generally cannot force the other party to move out, nor can the other party force you to move out – this is so even if one party solely owns the family home.

If however, it is entirely impractical for both parties to remain living under one roof and one party refuses to move out, then there is an option for a party to file an Application in Court seeking that they have what is called ‘exclusive occupation’ of the family home.  This means that the Court will be asked to exclude one party from the family home.  The success of that application will depend upon the facts of the matter.

Notwithstanding the above however, it is also very common for one party to move out of the family home noting that the emotional strain of continuing to live together while a relationship is ending can be too much.  This gives rise to some very common questions, which we answer below:

1.          If one of the parties moves out of the family home, who pays the mortgage?

Legally speaking, the parties to the mortgage are responsible for maintaining the mortgage.  However, in family law, the practical reality is often that the party staying in the home will maintain the mortgage noting that the other party will then have the financial burden of their relocation costs and potentially payment of rental costs.

2.          If one of the parties is a stay at home mother, doesn’t work and stays in the family home, does she have to pay for the costs of the family home?

Sometimes, if the party staying in the home doesn’t have the ability to maintain the costs of the family home, then it might be possible for the other party to continue to maintain those costs if they have the capacity to do so.

This may come about as a result of the parties agreeing to this arrangement, or it may be necessary to file an Application with the Court seeking that the Court make interim (temporary) Orders for this to occur.  The success of such an application would depend upon being able to prove that one party has the capacity not only to maintain their own living costs but also to continue to pay the expenses of the family home.

 3.          What happens if the party staying in the home refuses to pay for the costs of the family home?

Most often if this happens it will be necessary to file an Application with the Court seeking Orders that:

    • compel that party to maintain the costs of the family home; or
    • sell the family home if neither party has the capacity to maintain the costs of the home; or
    • force that party to move out and for the other party to move in if they have the capacity to retain the home and maintain the costs of the home.

4.          If one party moves out, does it effect that party’s entitlement to that property?

There is a common myth that if one party moves out of the family home then they will not be able to get that property or they will have no entitlement to the property.  This is false.  The property will form what is called the asset pool and will be counted when considering how property is to be divided.

Practically speaking, it can often be harder to be the one to retain the family home if you are not living in it and the other party is living in it and has been maintaining the home and also wants to keep it.  This is because the party living in the home will often have reduced motivations to progress the matter if it means there will be a contest about the property.  As a result, parties may often be advised to remain in the family home if they are looking to retain that home.  However, the emotional toll of this can be high and the emotional and physical health of you and your children must always be the priority.

We often say at Southern Waters Legal that knowledge is power and we would be pleased to empower you.

If you have separated and have any questions about the practicality of moving out, or being separated under the one roof, or just generally about your separation, then please contact our family law team so that we can help guide you through the process.

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