Should I Stay or Should I Go?
Leaving the Family Home after Separation
A question that Family Lawyers often get asked when people separate is ‘Should I stay in the family home?’
There is no yes or no answer because everybody’s circumstances are unique. Generally we suggest you remain living in your home unless there are safety concerns*. Reasons may include:
If you move out you’ll have to find somewhere else to live which usually means paying rent. However if the family home has a mortgage in joint names then legally you’re still liable whether you’re living there or not.
Moving home is always a hassle. Contacting banks, utilities, finding somewhere to live, applying for leases and the general rigmarole of upping sticks can take a toll emotionally as well as financially.
If you move out to live somewhere else then you are going to need furniture, fridges and all of the usual household contents. Sometimes it can be impossible to take these when moving out in a hurry or there may be practical problems, e.g. built in appliances. If you must leave try to get help and take as much as is reasonable without leaving your ex unable to carry on living in the home.
Make a plan
Sadly it is not unusual for the person leaving home to only be able to take their clothes and a few personal possessions. If you have the opportunity to plan as to how you will leave don’t waste that chance.
It is less disruptive for children to remain in their usual home. If the children are going to live in the family home with your former partner then removing the household contents will make a difficult time for them even worse. It won’t look good for you if you end up arguing about parenting arrangements in front of a judge. Keep the children’s best interests as your priority.
Risk of conflict
If you leave the home and return there without prior arrangement, your ex may find this confronting. They could complain about intimidation and apply for a protection order. Once you have gone it is hard (but not impossible) to regain access.
What about sharing a home post separation?
If you can remain on good terms then this may work for a while. However in our experience such arrangements can be tolerated for only so long. It is usually better for separated spouses to live apart. Aside from the day to day emotional upset, there is the risk of the relationship becoming more hostile which may increase the risk of family violence.
Nesting – where the children stay and the parents come and go
There may be good reasons for you to want the children to remain in their family home whilst you and your ex rotate occupancy. However we would not usually recommend this option and rarely if at all for the long term. Like sharing a home with an ex after separation, the risk of conflict is high and the arrangements can be confusing for the children.
Forcing the issue
If you want to stay but your ex won’t leave then you will need legal assistance to resolve the issue. In cases where there has been family violence a court can make a protection order which includes an ‘ouster order’ that compels them to leave. Alternatively you may have to bring proceedings in the Family Law courts to include an application that they be required to leave.
Staying civil pays off
It will almost always better to try to remain as cordial as you can with your ex and negotiate the living arrangements by mutual agreement. By remaining on civil terms you will have a better chance of reaching an early resolution to property and if children are involved the long term outlook for them will be much better.
* Contact the police if you have any immediate concerns about your or someone else’s safety.
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It may assist you to obtain legal advice if you are thinking about separation and are worrying about leaving the family home. Call us on 07 5597 3366 today to arrange a FREE initial consultation to discuss your concerns with a Family Lawyer.
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For more information on this topic please contact Margaret Miller, Partner and Family Lawyer. This article has been prepared by Bell Legal Group for general information purposes only. It is not legal advice and should not be relied upon as such.