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What happens if I leave the family home during divorce negotiations?

The matrimonial home is very often the main asset of a marriage and is likely to be a topic of consideration during the divorce process.

It is not uncommon for one party to leave the family home during divorce negotiations, especially where close contact causes unnecessary tension and conflict. However, it is crucial that you obtain full legal advice before taking any action to ensure that you do not compromise any aspect of your divorce.

If youre considering or going through a divorce and wondering what happens if you leave the family home during negotiations, click below for a free initial consultation with one of our expert divorce solicitors.

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Do I lose any rights if I move out?

Where the family home is jointly owned, moving out will not cause you to lose any of your rights. Where the family home is owned solely by your spouse, it remains a matrimonial asset, thereby giving you matrimonial home rights, which includes a right to reside. It is advisable that you register these rights with the Land Registry to prevent your spouse from disposing of or devaluing the home (for example, taking out a mortgage) before achieving financial resolution.

Can my spouse force me to leave the home?

Generally, one party cannot force their spouse to move out of the family home. If a party wishes to do this then it would be necessary to get an occupation order secured from the courts. These state who can and cannot occupy the home, but are deemed draconian and therefore are infrequently implemented except in situations where a risk of harm exists.

The locks should also not be changed without the other spouses knowledge and consent. An excluded spouse remains within their rights to regain entry by changing the locks themselves, and very often this only conjures unnecessary conflict detrimental to the divorce proceedings.

What are my options if my spouse is abusive?

If your spouse is abusive, you can apply for an occupation order as above, as well as a non-molestation order, which aims to prevent your spouse from harassing, intimidating, or harming you. If in threat of immediate danger, then you should immediately the police.

What other factors should you consider?

Children

The welfare of any children is of paramount consideration to the courts. It is useful to consider whether your child will benefit from a retained sense of normality, with both parents remaining temporarily in the family home. Another consideration to make here is that any party who leaves the family home may become obliged to continue financial maintenance of any children under the Child Maintenance Services guidance.

Strategy

While your departure from the family home should not directly affect your rights, you should be mindful of its potential impact on financial negotiations.

  • Financial negotiations proceed faster for some spouses living under the same roof, while others find opposite. Observe whether living together is constructive for negotiations or creates unnecessary tension. It is important to note that a spouse enjoying solitary occupation of the family home may not feel motivated to progress matters as quickly – especially where divorce threatens their departure.
  • Moving out can make a return to the familial home harder and potentially more emotionally destructive or confusing where children are concerned.
  • Where valuation of the family home is required, remaining in the home may prevent the risk of a spouse damaging/devaluing the property during this time.
  • Finding a new property can reduce your financial claim. On the one hand, a comparatively modest property may point the courts to a lower standard of living, while a more expensive could indicate that your spouse requires property of a similar standard.
  • It is also important to note your need to contribute to any mortgage payments and utility bills, even after moving out of the property.

It is advisable to take specialist tax advice as to any capital gains tax consequences.

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