If you decide to leave your marital home during a divorce, it is important to understand that you will not lose your legal rights to the property. You will still have the right to access and occupy the property, and it will still be included as part of your divorce financial settlement. Remember, your marital home (or family home) will be seen by the courts as a matrimonial asset if you and your partner are married, regardless of the type of ownership (e.g. sole or joint).
While it is true that you will not lose the legal rights to your marital home if you leave the property following separation, you may lose some bargaining power when reaching a divorce financial settlement. For this reason, we recommend speaking to one of our compassionate expert family law solicitors to discuss your situation and the safest legal approach to take before you move out of your marital home.
Should you leave your marital home?
When deciding whether to leave your marital home following divorce, remember that even if your spouse has sole ownership of the property, they cannot force you to leave. In this scenario, you should always seek legal advice before you leave your home.
Given that the no-fault divorce process in the UK takes at least 6 months and the level of emotional stress resulting from not being on amicable terms is often extremely high, it is entirely understandable that you might want to leave your marital home. That said, there are some potential disadvantages of leaving the family home:
- Additional financial stress – consider the additional costs of maintaining a second home while continuing to cover costs for your marital home. Remember you are required to cover your existing financial obligations, at least until your divorce settlement is finalised.
- Emotional distress – leaving your family home is likely to be emotionally distressing.
- Altering the court’s view of your needs – In some cases, a judge may view moving into a smaller property as lowering your standard of living, which may result in you receiving a smaller split of the divorce financial settlement.
- Slower divorce settlement – while not always the case, it may be that your partner may not be motivated to speed up the divorce settlement process if they have the marital home to themselves.
- Risk of property devaluation – by leaving your family home, you may lose some control of the property valuation process, which is required to reach a divorce settlement. It may be that your former spouse may seek to sabotage a favourable valuation by deliberately causing damage to the property or purposely getting a lower valuation.
If you need to leave your marital home due to domestic abuse from your ex-partner, a family law solicitor can help you to apply for an Occupation order, which will provide you with legal protection and ensure that you and your child can stay in the marital home.
Protecting your rights if you leave your marital home
If you do decide to leave your marital home, one way that you can protect your legal and financial interest is to ask a family law solicitor to register a notice or restriction with the Land Registry. A marital home right notice will prevent the sale, transfer or mortgaging of the family home without your knowledge because prospective buyers and lenders will be alerted to your ownership rights as a spouse. The marital home right notice can be removed when you reach a divorce settlement and will no longer apply when you are divorced.
Can my husband move his girlfriend into our house in the UK?
If your husband or wife moves their new partner into the family home before you have finalised your divorce (i.e. Final order) and reached a financial settlement, they should request your permission first. It may also be possible to come to an arrangement whereby your ex-partner pays you occupational rent. Occupational rent is a type of compensation paid by an occupying ex-spouse to the non-occupying ex-spouse to reflect the fact that they have exclusive occupation of the family home.
Access to marital home during a separation or divorce
If you leave your marital home, you will still have the right to access the property but remember, the same applies to your ex-partner. So, while you can ask your former spouse to leave the marital home during a divorce, and they may agree to do so, it is still within their right to enter the marital home. However, your ex-partner does not have the right to cause damage to the property or enter forcefully. Any attempt by your ex-partner to damage your property may be viewed as criminal damage by the police and the courts.
If you are a victim of domestic abuse by your ex-partner, you can instruct a solicitor to apply for a non-molestation order or occupation order to prevent their access.
