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Common questions on divorce: Will I lose my legal rights regarding the family home if I move out?


As family lawyers, we are frequently contacted by individuals going through separation and divorce who are concerned that if they leave the family home it may have an impact on their legal rights. Rebecca Patience and Hannah Pinder from our divorce and family law team explain an individual’s rights under these circumstances.

For couples experiencing matrimonial breakdown, the decision for one partner to leave the family home can be a significant move, both practically and emotionally, as it may signal the start of separation and eventual divorce.

By moving out, will I lose my rights in connection with the family home?

The law is clear that the family home must be treated as a shareable marital asset whether it is held in joint names or the sole name of one of the parties. Claims may be made against the equity held in property by either spouse. It is not always relevant who contributed towards the house purchase price or whether one party paid more towards the mortgage than the other.

As a direct result of marriage, claims can be made in respect of the family home and this right remains even after you move out of the family home.

If I move out of the family home, can my spouse change the locks?

If the family home is owned in joint names, your spouse cannot exclude you from the property without a court order. While your spouse may take steps to change the locks if you move out, if you are a joint owner of the property, you have a right to return and gain access to the property.

This can be a sensitive issue and we strongly recommend that you seek legal advice before changing the locks or forcing entry to a property in a situation when the locks have been changed. If the property is owned in the sole name of your spouse, you may still have occupation rights.

We would recommend that urgent legal advice is sought if your spouse has changed to locks and has denied you access to the family home.

Will I still have to pay the mortgage if I move out of the family home?

By choosing to leave the family home, it can be difficult to meet the costs of securing alternative accommodation as well as contributing to the mortgage for the family home. From a legal perspective, if you and your spouse both own the property and are both named borrowers, you will both continue to remain jointly liable for any mortgage repayments, even if you choose to leave the family home.

This does not necessarily mean you should pay half of the monthly repayment and your contribution can be discussed with your spouse, however you both will be jointly liable for ensuring the full mortgage repayments are met. 

What arrangements can I make with my children if I move out of the family home?

The emotional impact on children following a separation cannot be underestimated. For that reason, it is advisable not to leave the family home until formal arrangements have been agreed as to when and how often the children will spend time with you once you have moved out.

While it is preferable to reach agreement prior to leaving the home, it is not always possible. If you encounter difficulties in reaching an agreement regarding the arrangements for the children, we recommend you seek legal advice.

See also our guidance for parents seeking to have and maintain contact with their children.

My partner and I are separating, can we both continue to stay at the family home?

Although there are some clear practical benefits of continuing to live in the family home, especially if you have children, this is usually only achievable if you and your spouse are on relatively good terms following the breakdown of the relationship.

In some cases, spouses may choose to remain in the marital home together until the divorce is finalised and the financial issues are resolved. This is a personal decision, if relations are not healthy between you and your spouse, you could consider making alternate living arrangements in the knowledge that your financial claims against the equity in the family home will not be lost.

Harrison Drury’s team of specialist family lawyers can provide tailored legal advice if you are thinking of leaving the family home or have already done so, due to a marriage breakdown. For further advice and support contact our divorce and family law team on 01772 258 321.

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