We are separated – do I have to leave the home? 

If you have co-habited with a partner and are now going through a separation it can be a very difficult time. But not knowing whether you should stay or leave the home where you have lived together can make things even more stressful. Here, Jemma Wentworth asks a series of questions to help you make your decision.

It is important to know the facts and how to apply them to your particular circumstances. Please use the questions below to help you make the decision that is right for you.

Has there been domestic violence?

If there have been instances of domestic violence it is important that you seek legal advice in regard to the safety of yourself and your family where relevant. It may be possible for you to apply for a non-molestation order or occupation order to ensure both your protection and that you remain living in the property to the exclusion of your ex-partner. If the property has been your home, there is every possibility that you should remain living there and not vacate, especially if you have children. Every case is specific to the individual and we shall offer the advice that is relevant to your circumstances.

Are you and your partner the names owners of the property?

If both you and your partner are the named owners of the property, you are a legal owner and have the right to occupy. Again, your specific circumstances need to be considered, however, it could be that you remain in the property and your ex-partner will need to vacate. If so, how will that work? If the property is subject to a joint mortgage, do you have the capacity to take on the mortgage on your own? Do you have the ability to meet the monthly mortgage payments? What payment should be made to your ex-partner? It is strongly encouraged that you seek advice from a financial advisor or mortgage broker to look at all of your options.

Is your ex-partner the only named owner of the property?

If your ex-partner is the only names owner of the property, it is important to look at your options. If you are not an owner and you are not married or in a civil partnership, you do not have an automatic right to remain in the home. However, you may be able to apply for a court order that allows you to stay in the home for your child/ren’s benefit. If you feel that you have a right to remain, it is necessary to look at how the law can help you. The Trusts of Land and Appointment of Trustees Act 1996 may be of assistance in circumstances where you have a beneficial interest in the property in some way. For example, have you paid toward renovations? Have your contributed towards the mortgage? Was the property always intended to be your hoe as much as your ex-partner and do you have evidence to prove this? If so, it is possible to establish a beneficial interest and therefore your right to remain could be argued. There are many varied and fa-ranging ways for this to be determined and you should seek legal advice for your specific circumstances.

On the other hand, if neither you nor your ex-partner own the property, it may be that your property belongs to a family member or you are renting the property, it is likely that neither of you have the legal right to remain on a long-term basis. If you are renting a property, you may wish to remain living there without your ex-partner. This is something you should address with the landlord and it will be subject to contractual obligations. However, it may be that you will both need to vacate the property and start fresh independently of each other.