Who gets to stay in the Family Home after a separation?
Living together after separation is not always possible for all couples, especially in circumstances where there is serious conflict or a risk of violence.
If living together is no longer an option, many separated couples will be faced with the contentious question of who moves out of the Family Home.
*Your family home is the property that you either own or lease with your spouse or partner.
It is important that you are aware of your legal rights with respect to Occupancy of your (previously shared) Family Home.
What is Exclusive Occupancy?
If one spouse has been granted Exclusive Occupancy of the previously shared home, this means that he/she can stay in that home after separation – to the exclusion of the other spouse.
Provided that you are a joint owner of a property, or are defined as a “spouse” under the Family Law Act, you can apply for Exclusive Occupation and use of the Family Home.
*A spouse is somebody who is married, or is unmarried but has been living with the other party for a period of at least 2 years in a continuous relationship.
What is an Exclusive Occupancy Order?
Sole ownership of the Family Home does not always mean that he/she automatically has Exclusive Occupancy. In most cases, each spouse has a legal right in the Family Home unless otherwise decided by the Court.
When you and your partner cannot mutually agree who stays and who moves out, you may seek a Court Order granting you Exclusive Occupancy of the Family Home.
The Court has the power to order that one spouse have Exclusive Occupancy of the Family Home.
The person seeking Exclusive Occupancy must establish the following:
- that it is no longer practically possible to share use of the residence, and that
- on a balance of convenience, the applicant is the preferred exclusive occupant. In other words, you must establish that the inconvenience of you leaving the home outweighs the convenience for your spouse staying.
There are other factors that the Court considers.
For example – Cases like Bateman v. Bateman 2013 BCSC 2026 confirm that when children are involved, the main consideration in determining which spouse is granted Exclusive Occupancy is that it must be in the best interests of the children.
Further examples of relevant factors that may be objectively considered are:
- the need for the children to be in a stable home;
- the conduct of the spouses, for example if there is drug or alcohol abuse or the use of violence in the household;
- the respective economic position of each spouse;
- whether or not there is separate living arrangements on the same property as the family home that may allow for minimal contact between the spouses;
- the effect on either party of continued cohabitation; and
- any past agreements that relate to sharing the home despite tensions between the spouses.
The Court will often take a practical approach (especially where there has been a great deal of conflict), and can (if the financial position of the parties justify it) require one party to leave the home.
What Are the Consequences of Being Granted Exclusive Occupancy?
While an Order of Exclusive Occupancy does not impact either spouse’s right to ownership over the Family Home, there can be significant consequences to moving out.
As this is generally a complicated area of family law, there are no necessarily fixed consequences for the granting of such an order. Each situation has its own unique circumstances.
For example, it may be that you and your spouse share a mortgage and the Order may affect how the payment is shared; or the Order may result in you having to cover the expenses related to the Family Home, such as rent, utilities, and taxes.
Another situation you should be prepared for is that you may have to pay occupational rent to your spouse, as he/she will not be living in the home that they would otherwise have rights to. You may, however, be able to apply for financial support from your spouse, should you find yourself in a position where you cannot cover all the costs.
How Long Will an Order Last?
These Orders are generally not permanent and are typically subject to a time period dependent on the specific circumstances.
For example, the Order may last until you finalize a divorce from your spouse; or if the Order was made in the interests of the children involved, then it may lapse once they finish school in that area.
While this article provides an overview and basic information with respect to Exclusive Occupancy, it is strongly recommended that you consult with a family law lawyer on what the best options are for you and your specific circumstances. Call Solimano Law today!
Disclaimer – The information contained herein is of a general nature. It is not intended to be legal advice and it is not intended to address the exact circumstances of any particular individual or entity. No one should rely on or act upon such information without receiving appropriate professional advice and without a thorough examination of their particular situation. Please contact our office if you have any questions with respect to the content of this entry, this website, or our Terms and Conditions .