For many couples, a house is a primary asset, whether they’ve been saving up for it for a long time or purchased it after marriage. However, it becomes problematic when they go on their separate ways. There is both monetary and sentimental worth in a home because of the memories it holds. But who gets to keep it after legal separation? Here are some factors that can affect that decision.
Are Your Married Or Together By Common Law?
A marriage and a common-law couple have a huge difference in property division when they need to separate. The Family Law Act aims to provide an equal or fair amount of assets to both spouses if they are legally married. But it’s different if the couple only lives together in a common-law relationship without existing statutory protections. If both partners wish to stake a claim to the property, they’ll need to come to an understanding or compromise. However, if that is not possible, they will have to fight for legal possession of the home and make an ardent case as to why it should be theirs. Working with a family law firm can help you understand your rights in this situation.
A property is a matrimonial home for as long as the married couple lives under its roof. The Family Law Act states that both spouses have an equal right to the home regardless of whose name is on the title deed. The law prevents one from alienating the home despite being the title holder of the house. Common-law couples might be sharing the mortgage and upkeep of the home, and because there are no protections similar to married couples, they will have to use an unjust enrichment claim or constructive trust in court.
Are There Minors Involved?
Who gets the property may also depend if the married couple has children under 18 or none. No law can prohibit who gets to stay in the home. If the couple doesn’t have children, the court may decide to order the sale of the property at a price that is likely below market value. But you do have the option to enlist the help of a realtor instead to help you get the best deal.
In the case of minors, the judge will likely award the home to one of the spouses. The court does this to help both spouses recover from the legal separation process. They will need to get back on their feet, and the children must remain in a place where they feel safe and feel familiar. That means the spouse with custody of the children will likely stay in the house. The court might also order the other spouse to contribute to the house’s mortgage.
What If Your Renting Property?
If you and your spouse are only renting accommodation or property, you must review the rental agreement to determine whose name is on it. Since it’s a legal agreement, that person is responsible for paying regular rent.
But regardless, the law also considers that the person can stay even if their name is not on the lease. If they decide to part ways, the spouse who wants to keep the house must agree with the other to coordinate with the landlord and transfer the lease agreement to the other’s name.
If the lease is in the spouse’s name, the landlord will need to change it to one word only: the person who wants to stay. Alternatively, the couple may leave the rental home and end the terms with the landlord.
Existing Violence In The Family
Domestic violence is one of the permissible grounds for legal separation. A spouse or the children, or both, may be victims of domestic violence and can seek quick intervention from the appropriate authorities and lawyers. The victim or victims must seek protection to make the process of separation and divorce easier. For your reference, here are different types of domestic abuse:
- Physical abuse
- Threats of killing or injuring a person
- Sexual abuse
- Stalking/ Harassment
- Psychological abuse
- Failure to provide life’s necessities
- Financial abuse
- Threats or actual killing or harming an animal or damaging property
The revised Divorce Act takes child protection, pending civil defense, and criminal procedures involving divorcing couples into consideration. Therefore, you must inform the court of all matters involving child protection, criminal charges or orders involving you or your spouse, and restraining orders against any of you. The court will then decide whether or not to remove the defendant from their residence.
These are only a handful of the factors that determine who leaves the residence following a separation. In most cases, one of the spouses may decide to go on their own. But in worst-case scenarios such as domestic violence, the full force of the law will have to get involved to keep the victims safe.
Takeaway
Several factors, such as the nature of the relationship, the presence of children, property ownership, and domestic abuse, influence who leaves following a separation. Spouses may separate for numerous reasons, but if they have differing views on who should leave home, it may be challenging for them to identify who should move out. In light of this, consider this guide as a reference on what legal steps to take in this situation.
