Key questions on divorce and separation—part 1: should I stay in the family home?

When a marriage ends, one of the first considerations is whether to move out of the family home or continue living there, possibly with the separating spouse. It is a tricky situation and there is no single right answer. Below, we outline some factors to consider when deciding if this is the right choice for you. Please note, this article focuses on married couples, as different provisions apply to unmarried couples.

The first point may seem obvious, but it is important to reiterate: if your safety is at risk, you should seek help. This may require leaving the property. This could be on a temporary basis before applying for an occupation order to allow you to return to the property (see our Domestic abuse hub for information on this). Alternatively, if you have a safe place to go, you might choose to leave for the long-term to prioritise your wellbeing. Your safety and the safety of any children should be the first priority. This can be true in cases of abuse, whether the abuse is physical or not. If you are at risk or feel unsafe, you should call 999. In addition, family law can provide protection with applications under the Family Law Act and details are set out in our Domestic Abuse hub. The remainder of this post focuses on the question of moving out when there is no risk to you or any children.

If there are no safety concerns, you might be weighing whether to move out of a potentially difficult environment or stay and tolerate the awkwardness. When deciding whether to move out, you may want to take the following practical points into account.

Perhaps a friend or relative can offer temporary accommodation, but if you're planning to rent, you'll need to assess whether you can manage this expense. Think about not only the cost of your new place but also what will happen with the financial responsibilities tied to the family home. If you have a mortgage, you may still be accountable, as well as for any tenancy agreements. Additionally, you’ll want to maintain payments like home insurance to protect your interests.

If you move out you might be expected to continue to contribute to the household expenses, especially if you are the higher earner or there are any children. It is also worth noting that liability for child maintenance generally arises when living under separate roofs. Consider making a list of your expenditure and how this will be met.

Often following the end of a relationship, your support network will make offers of assistance. You might be in a position where you can stay with someone else in the short term, but you will have no guarantees about when the finances will be resolved and a longer-term solution put in place (such as selling or transferring a property). If you move out, you might discover after a few months that you can no longer stay where you are, leading to a challenging conversation about moving back in.

If you have children of the marriage, you will usually still want to spend regular time with them. You might be able to move somewhere with suitable accommodation for them to stay, but you will need to think about proximity to their school or activities. If you are staying somewhere which does not have space for them to stay, you need to consider what arrangements could be put in place for the children to spend time with you. 

The relationship may have reached a stage where it is agreed that living in the same house is no longer the best option. However, it can be hard to agree on who should leave. Considering the above points, one person may be better suited to moving out—perhaps they have an alternative place to stay or can easily afford to rent a suitable property. However, unless there is a risk of harm, you cannot force one person to leave simply because you prefer to stay. In the short term, you may consider taking it in turns to reside in the property whilst the other lives somewhere else (this is called nesting) whilst the longer-term arrangements are settled. 

You may want to discuss what will happen if the person who has left wants to move back in. 

While the above focuses on practical considerations, you should also reflect on the impact moving out may have on both of you and the resolution of financial issues following the divorce. While most people want to finalise their divorce quickly, and issues can often be resolved more efficiently once you are living separately, it can be emotionally challenging for some individuals, making it difficult for them to engage in the process. Additionally, if there will be a change in standard of living after the divorce—which is often the case—some individuals may be hesitant to take active steps to resolve financial matters. If your spouse remains in the family home while you move out, you may find they lose the impetus to deal with matters. 

However, a key point to consider is the emotional impact on you, as well as any children. It is often important for your mental health to establish some distance between you and your spouse. It can also be easier to be civil and co-parent effectively when not trying to navigate the same space. Balancing these potential factors is required when making a decision as to the best next step.