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Do I have to move out?

View profile for Josh Russell
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When any relationship breaks down, whether it is a marriage, civil partnership or cohabiting relationship, there are often a few questions which are at the forefront of everyone’s mind. “Do I have to move out?” is one of the most common. The answer to this question is not always obvious or straight forward and many people move out, believing that they have no right to remain in the property, or remain in the property in fear that moving out will be to their detriment.

Marriage/Civil Partnership

In the majority of cases, the matrimonial home (the property that the family lives in) will be jointly owned by both husband and wife and therefore both will be entitled to reside within the property. If the breakdown of the marriage is acrimonious, it may not be appropriate for both husband and wife to continue to reside within the same property and it may therefore be necessary for one party to move out. There is no rule as to which spouse should vacate the property but a large number of people incorrectly believe that by moving out of the property, you will lose some entitlement to the equity in the property. This is not the case and in reality your entitlement to equity in the matrimonial home is extremely unlikely to be affected by moving out of the matrimonial home.

In some cases, the matrimonial home will be owned in one spouse’s sole name. In these circumstances, the belief is that the spouse that owns the property is the only person with any entitlement to reside in the property, following the breakdown of the marriage. Again, this is not the case and providing the husband and wife remain married (ie Decree Absolute has not been granted), the married partner will still be entitled to reside within the property. The main concern in this instance, if you are the spouse that does not own the property, is ensuring that your spouse cannot sell the property without your consent or before the financial aspects of the divorce are dealt with. It is important to take legal advice in respect of this to ensure your rights are protected.

Cohabiting Relationship 

Where a couple are not married but own a property jointly, both parties will be entitled to remain within the property, regardless of who contributed what towards the purchase or monthly mortgage repayments. 

If the property is owned in the sole names of one of the parties, the other party does not have an automatic legal right to remain in the property. The owner of the property could therefore evict their former partner without the need for a Court Order. If however, the party that does not own the property had paid towards the mortgage, improvements or an extension, it is possible to establish an interest in the home which would then entitle that person to continue living in the property and also may entitle them to a share of the equity.

If your partner is demanding that you vacate the property and you are still not clear about whether you have a right to remain in the property, please contact one of our family law experts on 01295 270999 (Banbury Office) 01869 252 161 (Bicester Office) 01788 579 579 (Rugby Office).