Who gets to stay in the family home after separation or divorce?

By Timothy Henderson  |  March 24, 2021

Timothy Henderson

When you separate from your spouse or common-law partner it can be difficult, or impossible, to stay in the same home. It can be easier for both of you—mentally, emotionally, and sometimes for the safety of you and the children—if you can come to an agreement on who will stay and who will leave the home.

What to keep in mind

There are a few things you should consider before deciding who leaves or stays in the family home:

  1. Do you or your partner have other options for places to live?
  2. How quickly can you or your partner move to this place?
  3. If you have children, what will the arrangements for their care be? Are they going to be affected if they have to move out? What connections do the children have to the new location—for example, schools, friends, and activities?
  4. Does one partner need to remain in the house? For example, do they work from the home? Should the parent who mostly looks after the children be the person who stays in the house?

Legal considerations

Ideally, you should talk to your lawyer before deciding who leaves or stays. If you are the one moving out, it’s important to understand the impact it will have on your ability to move back into the house at a later date (for example, if you ultimately want to be the sole owner of the family home, the fact that you moved out may affect your ability to negotiate that and other issues). You should also think twice about moving out if there are children involved and they would stay with the parent who remains in the family home, as this may affect your claims to the children in terms of parenting issues (for example, if you want the children to reside primarily with you, this can become much more difficult once you have moved out of the home and the children have remained behind with the other parent).

Expenses for the Family Home

If one spouse or common-law partner decides to move out, there should be an agreement on who will pay for the costs associated with the family home, such as utilities, mortgage/rent, and property taxes and insurance. You might also have to consider who will be responsible for the repairs or upkeep of the home. It is advisable for your arrangements to be specified in writing, and for records of all expenses to be maintained and tracked. If the property is jointly owned, the parties should attempt to discuss and agree on any major expenditures in advance, wherever this is possible. This is separate from any child support and/or spousal support obligations that may exist, but the issues can become intermingled and difficult to untangle later on if not properly arranged early on.

In summary, these financial issues can be a minefield of potential risks. It’s important that they be handled carefully, both to make sure the accounting is correct, and that you receive appropriate credit for any payments that you make. It is wise to obtain legal advice early to ensure that you arrange for these issues correctly right from the beginning, as your lawyer can provide you with advice and, if necessary, make sure that any necessary temporary arrangements or agreements are put in place.

What if you can’t agree?

If you can’t come to an agreement about who will live in the home – or if there is urgency or risk because of domestic violence that makes negotiating impossible – you can consider alternatives, such as obtaining a court order for exclusive possession. This is a ruling that says you (and your children) can live in the matrimonial home and your former spouse must vacate the premises. If necessary, you can also seek a restraining order to prevent your ex-partner from even coming to the property or contacting you at all (by any method). This will not change who owns the home, which will still need to be resolved through negotiations between you and your ex-partner, or through a court case.

In next month’s blog, you can read more about obtaining such an order for exclusive possession.

To get a clear understanding of who stays in the family home after separation or divorce, it’s important to talk to a family lawyer. Contact Henderson Family Law to set up an appointment.


This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.

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