Should I stay or should I go?

I’ve lost count of the number of times clients tell me that they are clear that their relationship has come to an end, for whatever reason, but they believe that they must stay living under the same roof as their spouse or partner, for fear that in leaving the property they will be relinquishing any interest in it or that their interest will in some way be affected.

With so many misconceptions about Family law – a bias towards mothers in Children Act cases and the concept of Common Law Marriage being just 2 that spring to mind, such a belief is not surprising.

It is often possible, of course, to agree that the other party leaves the property or, dependent on their behaviour, to obtain an Order enforcing their exclusion from the property. I leave aside those options in this piece.

My advice invariably is that, if it is financially viable for a client to leave the former shared property and they feel, emotionally or for any other reason that they cannot remain at the property, they should feel no pressure to stay to protect their interest.

It is in very few cases that a party leaving the former shared property in itself has any effect on the overall settlement.  Where a party leaves and then chooses not to deal with financial matters until some significant time after, when the occupying party perhaps has been paying the mortgage for years in the meantime, the occupying party might well have an argument as regards their contribution towards the mortgage, although it would be unlikely to wipe out the other’s claim in its entirety.

Where a marriage has been a long one and a party chooses to leave the former matrimonial home because the situation is untenable – if there are then financial negotiations over the following months, it is highly unlikely that the payment of the mortgage by the occupying party will have any impact on the settlement terms.

Likewise, where there has been a significant cohabiting relationship, the issues and arguments are likely to centre on the course of the whole relationship and not only its end.

It might, practically speaking, be best if leaving the property is done in a planned fashion and if the party leaving takes all of their personal belongings and paperwork (careful just to take your own paperwork or joint paperwork and nothing relating solely to the other party). If we are talking of a joint property, the leaving party will still have a right to enter and occupy the former shared property but my experience is that, if relations are difficult between couples, it is far better to have all of the items that you will immediately need with you when you leave – the rest can be dealt with later on.

What is far more important for a party to consider is protecting their interest if the property they are leaving is held in the other’s sole name.

For cohabiting couples, the non-owning party must rely on areas of trust law and intention is all important.

Registration of a caution with the Land Registry or at the very least some written confirmation that in leaving the property there is no acceptance that any interest is relinquished will be necessary.

For married couples, the situation is simpler. If the former matrimonial home is owned in one spouse’s name the non-owning party may register a Home Right against the property, to secure their interest. If a spouse owns other property (that has not been lived in as the marital home, or is no longer being used for that purpose) advice should be sought about registering restrictions against those other properties as well.

So, my advice….dealing with any Divorce or Separation takes its toll emotionally and it is important not only to have a good support network around you (family, friends, trusted Solicitor etc.) but to live in an environment that will allow you to deal with the variety of issues that will crop up without you feeling pressure, tension or hostility.

If that means leaving the former matrimonial home, and it is financially possible to do so, your interest in the property is in all likelihood not going to be affected and, if you are unsure or if the property is owned in your partner’s sole name, seek legal advice and your interest in the property can be secured in other ways.