Can I Stay in the Family Home During Divorce? Your Most Common Questions Answered

When a relationship breaks down, one of the biggest immediate concerns is often: who gets to stay in the family home?

You may be worried that your former partner can make you leave, change the locks, or move back into the property against your wishes. Alternatively, you may feel that it is no longer safe or practical for you both to continue living under the same roof.

In some circumstances, an Occupation Order can help.

An Occupation Order is an order made by the Family Court which regulates who can live in the family home. Depending on the circumstances, it can require one person to leave the property or set rules about how the property is occupied.

Below, we answer some of the most common questions about staying in the family home following separation or divorce and when an Occupation Order may be appropriate.

What is an Occupation Order?

An Occupation Order is a type of injunction made under the Family Law Act 1996.

It can determine who is entitled to live in the family home and, in certain circumstances, can require the other person to leave.

An Occupation Order can potentially:

• Allow you to remain living in the family home;
• Require your former partner to leave the property;
• Prevent your former partner from returning to the property;
• Regulate which parts of the property each person can use; or
• Require someone to allow you back into the property if you have been excluded.

Occupation Orders are often associated with domestic abuse, but the circumstances in which they may be considered are wider than physical violence alone.

Can my ex make me leave the family home?

Not necessarily.

Whether you have a legal right to occupy the property will depend on factors including who owns or rents the home, whether you are married or in a civil partnership, and whether you have any existing rights of occupation.

Simply because the relationship has ended does not automatically mean that one person can tell the other to leave.

However, if continuing to live together has become unsafe or unmanageable, you may need to seek legal advice about an Occupation Order.

What if the house is only in my ex's name?

You may still have rights.

If you are married or in a civil partnership and the family home is owned solely by your spouse or civil partner, you may have home rights under the Family Law Act 1996.

In appropriate circumstances, those rights can also be registered against the property's title at HM Land Registry. This can be particularly important if you are concerned that your spouse may attempt to sell or otherwise deal with the property without your knowledge.

Your name not being on the deeds does not automatically mean you have to leave the family home.

It is therefore important to seek advice before agreeing to move out or assuming you have no right to remain.

What does the Court consider when deciding whether to make an Occupation Order?

Occupation Orders can significantly affect both parties, particularly where an order would require someone to leave their home. The Court will therefore consider the individual circumstances carefully.

Depending on the type of application being made, relevant factors can include:

• The housing needs and housing resources of each person and any relevant child;
• The parties' financial resources;
• The likely effect of making, or not making, an order on the health, safety and wellbeing of the parties and any relevant child; and
• The parties' conduct towards one another.

In certain cases, the Court will also consider what is commonly referred to as the "balance of harm" test.

Broadly, this requires the Court to consider whether the applicant or a relevant child is likely to suffer significant harm attributable to the other person's conduct if an order is not made, and to weigh this against the harm that may be caused to the other person or a relevant child if the order is made.

Every case will turn on its own facts.

Do I have to be experiencing physical violence to apply?

No.

Domestic abuse is not limited to physical violence.

It can include threatening or intimidating behaviour, coercive and controlling behaviour, emotional or psychological abuse, sexual abuse and economic abuse.

An Occupation Order may therefore be relevant where living together has become harmful or unsafe even if there has not been physical violence.

The Court will, however, need to consider whether an Occupation Order is necessary and appropriate in the particular circumstances.

What is the difference between an Occupation Order and a Non-Molestation Order?

Although the two applications are often made together, they serve different purposes.

A Non-Molestation Order is primarily designed to protect a person or child from abuse, harassment, threats, intimidation or molestation.

An Occupation Order deals with occupation of the family home.

For example, a Non-Molestation Order might prohibit your former partner from threatening, harassing or contacting you, while an Occupation Order could require them to leave the family home or prevent them from entering it.

Depending on the circumstances, it may be appropriate to apply for one or both orders.

Can an Occupation Order make my ex leave even if they own the house?

Potentially, yes.

An Occupation Order can, in appropriate circumstances, restrict someone's ability to occupy a property even where they have a legal interest in it.

However, excluding someone from their own home is a significant step. The Court will consider the evidence carefully before deciding whether such an order is justified.

Ownership of the property is therefore relevant, but it is not necessarily the end of the matter.

What if we have children?

The children's circumstances can be extremely important.

The Court can consider the housing needs, health, safety and wellbeing of any relevant child when deciding whether to make an Occupation Order.

For example, the Court may consider the impact of a child having to leave their established home compared with the impact of the current living arrangements continuing.

However, having children does not automatically mean that one parent will be entitled to remain in the property. The Court will consider the circumstances of the individual family.

Can I change the locks?

This is an area where you should be particularly careful.

Whether you can lawfully exclude somebody from a property depends upon the circumstances and their legal rights to occupy it.

Changing the locks does not necessarily remove another person's legal right to enter the property.

If you believe your former partner should no longer be allowed to live in or enter the family home, it is sensible to seek legal advice rather than trying to resolve the situation yourself.

An Occupation Order may provide a legally enforceable way of regulating who can occupy the property.

What if my ex has already changed the locks?

If you have been excluded from the family home, you should obtain legal advice as soon as possible.

Depending on your rights to the property and the circumstances of your exclusion, you may be able to ask the Court for an Occupation Order allowing you to return.

If there are immediate safety concerns, you should also consider whether additional protective measures, including a Non-Molestation Order, are required.

Can I get an Occupation Order urgently?

Yes, in appropriate circumstances.

Where there is an immediate risk of harm or other urgent circumstances, it may be possible to ask the Court to consider an application urgently.

In some cases, an application can be made without notice, meaning the other person is not informed before the Court considers whether immediate protection is required.

The Court will not make a without-notice order simply because an applicant would prefer the other person not to know about the application. The Court must have sufficient justification to proceed without giving notice.

If an order is made without notice, the Court will usually arrange a further hearing at which the other person has an opportunity to respond.

How long does an Occupation Order last?

Occupation Orders generally deal with the immediate or short-term occupation of the family home rather than permanently determining ownership of the property.

The length of an order depends on the circumstances, the legal basis of the application, and what the Court considers appropriate.

Remember that an Occupation Order does not determine who ultimately owns the property or how financial assets should be divided after divorce.

Those issues are dealt with separately as part of the financial arrangements following separation or divorce.

Does moving out mean I lose my share of the house?

No, not automatically.

Leaving the family home does not, by itself, determine your financial entitlement to the property.

The question of who occupies the property in the short term is different from the question of how the property and other matrimonial assets should ultimately be divided.

However, there can be practical and legal consequences to leaving the family home, particularly where there are children or concerns about returning to the property later.

It is therefore sensible to obtain advice before making a significant decision about moving out wherever possible.

Does an Occupation Order decide who gets the house in the divorce?

No.

This is an important distinction.

An Occupation Order regulates who can live in the property. It does not transfer ownership of the house from one person to another and does not determine how the equity in the property should ultimately be divided.

The long-term future of the family home will usually be considered separately as part of the financial arrangements on divorce.

For example, the eventual outcome might involve the property being sold, transferred to one spouse, or retained for a period before being sold.

An Occupation Order is concerned with who can occupy the property in the meantime.

What evidence will I need for an Occupation Order?

The evidence required will depend upon your circumstances.

You will usually need to explain the history of the relationship, the current living arrangements, why you are asking the Court to intervene and what you believe may happen if an order is not made.

Relevant evidence could include messages, emails, photographs, police involvement, medical evidence or other documents supporting your account.

However, every application is different, and you should not assume that you cannot apply simply because you do not have a particular type of evidence.

Should I leave the family home during a divorce?

There is no single answer that applies to every family.

In some cases, remaining in the same property temporarily may be manageable. In others, continuing to live together may cause significant conflict or create safety concerns.

Before leaving, it is worth understanding your legal position and the potential practical implications.

Most importantly, if you feel unsafe, your immediate safety should come first. If you are in immediate danger, contact the police on 999.

Do I need a solicitor to apply for an Occupation Order?

You can make an application yourself, but Occupation Order proceedings can be legally and emotionally complex.

The Court may need to consider detailed evidence about the relationship, allegations of domestic abuse, the parties' respective rights to occupy the property, the needs of any children and the consequences of excluding one person from their home.

Obtaining specialist family law advice can help you understand whether an Occupation Order is appropriate, what other protective orders may be available and how best to present your application to the Court.

Need Advice About Staying in the Family Home?

If you are separating or going through a divorce and are worried about whether you can remain in the family home, you do not have to work out your options alone.

At Harrington Family Law, we can advise you on your rights to remain in the property, Occupation Orders, Non-Molestation Orders, home rights and financial arrangements following divorce.

Whether you are concerned that your former partner is trying to force you out of the property, you need them to leave because the situation at home has become unsafe, or you simply want to understand your position before making a decision, our family law solicitors can help.

Contact Harrington Family Law to arrange an appointment and discuss your options in confidence.