Separating and Making Your Partner Leave the Family Home
If you are thinking about separating from your partner one of the first practical things to consider is the living arrangements whilst you decide what should happen to your family home.
In this blog, our Family Law Solicitors look at your options if you want your husband or wife to leave the family home.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
Family home rights and options when you are separating
When you are getting divorced you need to look at your short-term and long-term needs when it comes to the family home. If you and your partner cannot agree on who gets to stay in the family home while you are negotiating a financial settlement the court can be asked to make an injunction order.
An injunction order can exclude you or your husband or wife from the family home (ouster order) or can allow one or both of you to occupy the property (occupation order). Injunction orders are temporary and do not affect your legal or property ownership rights.
When making a final financial court order the family court can order:
- The sale of the family home and the division of the equity after the mortgage is paid off
- The transfer of the family home to you or your partner
- The deferred sale of the family home so one of you stays in the property until a determining event. The court order says the property is then sold and the equity is to be split in the percentages ordered by the court. The determining event could be your youngest child reaching the age of 18
The court has the power to make these orders over the family home whether you are joint owners, your partner is the sole legal owner or you are the owner.
Temporary housing and financial support
You may want your husband or wife to leave the family home or they may want to force you out while you are negotiating what should happen to the house and other assets.
You should not leave the family home to stay with friends or to rent without first speaking to a Family Law Solicitor. That’s because it may not be in your best interests to leave the property whilst the divorce financial settlement is negotiated. It may also be better for you and the children to stay at the family home so the children have continuity.
Whilst you may prefer to separate from your husband or wife as soon as you decide the relationship is at an end and you want a divorce there may be some practical issues:
- Can you afford to pay the mortgage and bills on the family home?
- Will your husband or wife still need to pay the mortgage if they are a joint owner or legal owner but they are not living at the property?
- Can you or your spouse afford to rent if you or they are still having to pay toward the mortgage or pay spousal maintenance or child support?
- Can you cut down on any bills to make things more affordable whilst you negotiate a financial settlement? For example, can you agree to the mortgage going to interest only for a specified period or cancel gym or Netflix subscriptions?
- Can you agree on a figure for spousal maintenance or will you or your husband or wife need to apply to court for an interim spousal maintenance order?
- Will you get child support or need to pay it? Child support is not payable if there is an equal shared parenting arrangement – even if one parent earns more than the other one
- Even if your husband or wife agrees to you keeping the family home will the mortgage company agree to transfer the mortgage to you? If your spouse remains liable for the mortgage as their name is on the mortgage, they may be unwilling to agree to your keeping the family home as they probably won't be able to take out another mortgage to house themselves
It is important to sort interim finances out because if the bills or the mortgage on the family home are not paid this could affect your credit rating or your spouse’s rating. That may affect your ability to get another mortgage or to rent a property.
Our Family Law Solicitors can help you with a no-fault divorce application and advise on interim financial arrangements and spousal maintenance. Call us on 0203 959 9123 or or complete our online enquiry form.
Occupation and ouster orders
If you need your husband or wife to leave the family home and you are in the early stages of a separation and a long way from sorting out a financial court order you may be able to get them to agree to leave or you can consider applying for an injunction order.
An occupation order allows you to stay in the family home until a specified date. An ouster order excludes your husband or wife from the property until the order ends.
The court grants an occupation or ouster injunction if it thinks it is just and reasonable to do so after considering all the circumstances. The court assesses these factors:
- Your housing needs and housing resources and those of your spouse and any relevant child
- Your financial resources and your spouse’s resources
- The likely effect of any order, or the effect of not making an order, on the well-being, health and safety of you, your spouse and any relevant child
- Your conduct and the conduct of your husband or wife
The court also considers the likelihood of significant harm and balances any harm by weighing up the likelihood of significant harm to you, your spouse and any relevant child if an order is made, balanced against the likelihood of significant harm if an order is not made. If there is significant harm to you or any relevant child, the court should make an injunction order unless your spouse or any relevant child is also likely to suffer significant harm if the order is made, and the harm is as great or greater than the harm likely to be suffered by you or any relevant child if the order is not made.
Even if the court concludes significant harm is not likely, the court may decide to make an injunction order.
An injunction order can be applied for if you own or rent your property. You do not need to be the legal owner or to have your name on the mortgage to apply for an injunction order.
Our Family Law Solicitors can weigh up the prospects of your securing an ouster or occupation order and the costs against the benefits to you of your being able to stay in the family home without your spouse living there whilst you sort out the divorce financial settlement and what should happen in the longer term with the family home.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Our lawyers speak Arabic, Armenian, Farsi, French/Mauritian Creole, Spanish, Tamil Tagalog/Ilonggo, Urdu/Punjabi
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