Can I make my partner move out? If I move out will it impact my divorce case? - Family Law Partners

Can I make my partner move out? If I move out will it impact my divorce case?

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Christopher MaulkinCan I make my partner move out?

This is a question that we are often asked and the answer is it depends on the circumstances. I thought it would be helpful to provide some examples using fictional characters Andrew and Bettie to demonstrate the different scenarios and issues that can arise.

If you are married

It is important to note that all of the scenarios I have set out below are subject to any financial orders which may be made by the court. To make it simpler I have assumed that there is no financial order in place.

Scenario A – Andrew and Bettie are married. They live in 13 Made Up Street which is owned in Andrew’s sole name.

Even though the property is owned in Andrew’s sole name, Bettie has a right not to be evicted or excluded from 13 Made Up Street by Andrew and she could register a Home Rights Notice at the Land Registry. The exception to this would be with the permission of the court or if an Occupation Order is made under the Family Law Act 1996 excluding Bettie from living at the property.

If Andrew were to commence divorce proceedings and a Decree Absolute made, then Bettie would lose the right not to be excluded or evicted from the property unless she has already made an application to the court to extend this right or, depending upon the circumstances, Bettie had made an application for an Occupation Order to protect her from being evicted or excluded from the property.

Scenario B – Andrew and Bettie are married. They lived in 13 Made Up Street which is owned in Andrew’s sole name. However, following their separation, Bettie moved out.

As a result of moving out Bettie now no longer has a right not to be evicted or excluded from the property and would need to make an application to the court for permission to enter and live in the property.

Scenario C – Andrew and Bettie are married. They live in 13 Made Up Street which they own jointly.

In this scenario both Andrew and Bettie have a right to live in the property and those rights will continue even after the Decree Absolute is made.

If you are not married

Here we take a look at different scenarios for separating couples who are not married,

Scenario A – Andrew and Bettie are not married. They live in 13 Made Up Street which is owned in Andrew’s sole name.

Assuming they have not entered into a tenancy agreement or similar, Bettie has no right to live at the property.

Scenario B – Andrew and Bettie are not married. They live in 13 Made Up Street which they own jointly.

They will both have a right to live in the property.

What if there is domestic violence?

If there is domestic violence then an Occupation Order can be sought from the court which requires one person to move out of the property.

However, there are a number of factors that need to be considered before an application is made for such an order. There are legal tests which must be satisfied in order to obtain an Occupation Order and which we will consider in a subsequent blog.

Obtaining or defending an Occupation Order can be expensive, particularly if you are not entitled to Public Funding (also known as Legal Aid). This is heightened because the losing party would normally be expected to pay a proportion of the successful party’s legal costs.

It is important to recognise that an Occupation Order will not determine the extent of a person’s share in a property. The fact that one party has obtained an Occupation Order does not mean that they ‘own’ any more of the property than they did before they obtained the order.

If I move out will it impact my divorce case?

Where parties are married, moving out of a property does not mean they lose or reduce their legal interest that one party may have in it.

However, there may be other consequences which you should consider carefully:

  1. Capital Gains Tax – depending upon the particular circumstances, it is possible that moving out of a property may lead to a liability for Capital Gains Tax (this is something for which advice from an accountant may be needed).
  2. It may risk setting a pattern as to:
    1. What that party’s housing needs are going forward.
    2. How the outgoings on the property are met.

It is vital that you seek legal advice before deciding whether to move out of the property, or if you are considering making an application to the court to try to exclude your spouse/partner from the property.

If you would like to discuss in confidence how moving out of your home – or making your partner move out – will impact divorce proceedings please contact us and we’ll put you in touch with a member of our specialist team.

14 responses on “Can I make my partner move out? If I move out will it impact my divorce case?

  1. Me and my x wife living in a house owned solo by me I owe the house even before the marriage we are going through divorce and we have been separated for more than two years she accepted he children?s room we have two children they are sleeping with me in my bedroom now recently she bought a three bedrooms property in this case can I ask her to move to her property
    Thank you

    1. Thank you for your comment. You can ask your wife to move out of the property however, if she did not agree then it is likely that at the present time you would need an order of the court if you wanted your wife to move out of the property.

  2. I?ve been married for 20 years now and I have 2 sons ( 18 and 16 nearly 17 ). I?m currently going though a rough patch with my wife and feel I need to move out of the house because tensions I quite high and I can?t cope with the pressure that she is putting me under. Is moving out a wise thing to do before I start divorce process? The mortgage is in my own name and she has recently asked for her name to be included, she has also applied to land registry. Please halo.

    1. hank you for your comment. I am afraid that I cannot provide specific advice to you within this reply but have covered some of the considerations that you should bear in mind if you were to move out in the section of the blog titled ?If I move out will it impact my divorce case??. I would suggest that you obtain advice from a family lawyer who is a member of Resolution and please let me know if I can assist on a more formal basis.

  3. My wife and I have been married for 7 years but she want to split and wants me to go. We have three children under 16 and own the house jointly. She intends to stay in it with the children. If I move out will it affect my rights to half the equity and my rights to access to the children?

    1. Thank you for your comment, Richard. Whilst moving out of the property would not affect your legal interest in it, there are a number of considerations that should be taken into account and I would suggest that you seek advice from a family lawyer who is a member of Resolution.

  4. Hi
    Can I ask my wife to move out of my house, whenever I ask her, she creates lot of rough time and discussion goes completely in a wrong direction. I can’t discuss this in front of children. We got two kids and I want to take responsibility of them. She is not much educated and not working at the movement. We got married 8 years back in India and we both are British citizens now. I asked her to attend some family counselling sessions, but she is not interested in that. We live in the same house, but rarely talks with each other, I feel it is creating impact on children as well.

    1. Thank you for your comment. Unfortunately, we cannot provide specific advice within this blog however, if you look at the blog ‘If you are married’ and ‘scenario A’ this would appear to apply to your circumstances. If we can assist on a formal basis then please let us know.

  5. I married a uk national, arrived in uk under a spouse visa almost 2.5 years ago. He is asking me to leave so he can divorce
    me in pakistan. He objects to me working. He wont sponsor the visa extension. What do i do

    1. Thank you for getting in touch Amera. I am sure this must be a very worrying time for you. In relation to your visa we would strongly suggest that you seek advise from a solicitor who specialises in immigration and have set out a link to the Law Society find a solicitor search which may assist you: https://solicitors.lawsociety.org.uk/

      If you would like formal assistance in relation to a divorce in England and Wales then please let us know.

  6. We jointly own a house thiugh I have always covered the mortgage payments myself without a contribution from my husband. We are starting a divorce as he was unfaithful. He says he wont move out. I dont want to pay for his accommodation for ever and think he will stay in free accommodation rather than leave and have to rent or get a mortgage. Is thete a process I can follow to force the sale of the house and the halving of proceeds, after the mortgage is settled, so I can move on without keeping him? NB he has a job and decent salary. I have always paid the mortgage as he covered other expenses for us but clearly he wont be buying my groceries etc if I move away. I am desperate so any advice welcome

    1. Dear Debbie, thank you for getting in touch. We would recommend seeking advice from a family law specialist who is a member of Resolution so that you can discuss the process options available to you. Ultimately, if you husband is unwilling to engage in discussions and/or negotiations through Mediation or otherwise, you can make an application to the court for a Financial Remedy Order which will address how the property is to be dealt with as well as any other relevant financial matters that need to be addressed.

      You may find these factsheets helpful:
      https://familylawpartners.co.uk/wp-content/uploads/2021/10/Family-Law-Partners-Resolving-financial-issues-following-divorce-or-dissolution-of-civil-partnership.pdf
      https://www.familylawpartners.co.uk/blog/what-am-i-entitled-to-in-a-divorce?mh_keyword=family%20law%20partners

      If we can assist on a formal basis please get in touch.

  7. Married for 10 years. My wife has separated from me. My name is no longer on the house it’s just her name. It’s a housing association house. Do I have to leave.

    1. Thank you for your comment. Unfortunately, we are unable to provide specific advice when replying to blog comments. I would suggest that you seek legal advice from a family lawyer who is a member of Resolution.

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