Deciding Who Will Move Out When You Separate
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye and Zahra H. Jimale, Jimale Law Corporation in October 2018.|
When a couple separates, a question arises: who’s going to move out? Learn your rights when deciding who goes and who stays — and how to enforce the decision.
“Melina and I were arguing a lot. Last week she told me I had to move out. I didn’t know what to do. We bought our home together; it’s in both of our names! (Plus I’ve helped with the renos, the mortgage and the bill payments.) A lawyer told me I had just as much right to be in our home as Melina. The lawyer also told me that we can be separated while living in the same home. Now, I live downstairs and Melina lives upstairs while we figure out how to deal with our family issues.”
– Sergio, Maple Ridge, BC
- 1 What you should know
- 1.1 Who should move out
- 1.2 If you want to move out
- 1.3 You can move back in after you’ve moved out
- 1.4 You won’t lose your legal right to a share of the home
- 1.5 If you live together in rented accommodation
- 1.6 Rights to household belongings
- 2 Next steps
- 3 Common questions
- 4 Who can help
What you should know
Who should move out
Some couples keep living together after they separate, often to save money. But this isn’t possible for everyone. Sometimes living in the same home is not a good option. For example, if:
- There’s a risk of family violence.
- There is serious conflict involving the relationship and the children who live at home.
- Do the two of you get along well enough to stay in the home together?
- If you have children, how much are they exposed to your conflict?
- Can you afford to live apart?
If you’ve decided that living together in the same home is not possible, the question then becomes: Who gets to stay in the home?
There are some things to consider when deciding who’ll stay in the home and who’ll move out:
- Does one of you own the home?
- Which one of you will be keeping the home after separation?
- Can either of you afford to keep it?
If you have children, consider:
- Where are they likely to live after the separation, and who’ll be responsible for looking after them?
- Where do they go to school or daycare? Where do their extracurricular activities happen?
It often makes sense for the person who’ll be the primary caregiver to stay in the home. Or, if a spouse is buying out the other spouse’s interest in the home and keeping it, it makes sense for them to stay in the home while the other moves out.
If you want to move out
There’s no rule that says when you can and can’t move out. And nothing says you have to tell your partner your plan ahead of time. If it’s a very emotional separation — or there’s been violence or the threat of violence — you might want to move out when your partner isn’t home.
Get legal advice if you’re unsure about whether to move out. A lawyer can advise you on how moving out would affect such things as parenting arrangements or who gets the home.
You can move back in after you’ve moved out
If you both own the home or are both listed on the lease or rental agreement, you can move back in if you want. It’s your place, too. But in this case, you should tell your partner your plan. If returning could escalate conflict, you may want to think twice. If you can’t get along, you may need a court order to move back in or to force your partner to move out. You should get legal advice in this case.
You may be anxious that if you move out of the family home, this will affect who gets what. Don’t worry. If you have a legal right to a share in the family home, you won’t lose that right by moving out. (However, it might be tricky to later move back in, should you decide you want to try to work through your issues and your partner isn’t sure.)
If the family home is in your partner’s name, you can make a court application to protect your interest in the property. To do this, you need to be a “spouse.” This means the two of you have lived together in a “marriage-like relationship” for at least two years.
If you haven’t started a court case yet:
- You can file a charge against the property under the Land (Spouse Protection) Act. This will prevent your spouse from selling it without notice to you.
- You can file a notice of property agreement against the property if you and your partner have a written agreement dealing with the property. Filing this notice will stop your partner from dealing with the property.
If a court case has started, you can file a certificate of pending litigation in BC Supreme Court to protect your interest in the family home. The certificate means the property can’t be refinanced or sold without your knowledge.
Legal Aid BC’s Family Law website explains how to protect yourself financially after you separate, including steps you can take to protect your interest in the family home.
If you live together in rented accommodation
If you and your partner live in rented accommodation, the key point is whose name is on the lease or rental agreement. That person is legally responsible for paying the rent.
That doesn’t mean the other person — whose name isn’t on the lease or rental agreement — can’t be the one who stays. But in that case, arrangements need to be made with the landlord to transfer the rental agreement into the other person’s name.
If the lease or rental agreement is in both of your names, you need to change it to just the name of the person who’s staying.
It could be that both parties want to move out. In that case, you need to arrange with the landlord to end the agreement or to set up a sublet.
Rights to household belongings
Each of you has the right to keep anything you brought into the relationship. Couples who qualify as “spouses” under the law (which includes living together in a “marriage-like relationship” for at least two years) are presumed to equally share everything they acquired during the relationship. This is called family property.
If spouses want to divide their family property or debt differently, they can make an agreement to do so.
If you’re moving out
If you’re the one moving out and you’re taking the children with you, you’ll need to consider their needs when deciding what to take with you. But don’t strip the place bare or take more than a fair share. And don’t take things out of spite. Later on, you can always apply to court if there are more things you want from the home and you and your partner can’t agree on whether you can have them.
If you’re staying in the home
If you’re the one staying and your former partner hasn’t removed their belongings from the home, there are steps you can take.
If the property is in your name alone (owned or rented), and your partner’s financial interest in it is small, you may try giving them a written deadline to remove their things.
If the property is in joint names (owned or rented), then your partner may have a valid reason to leave their possessions in the home until the family law issues are resolved.
Step 1. Make sure you’re safe
If you’re concerned for your physical safety, call the police right away.
If you’re being harassed by your partner but there’s no risk to your physical safety, you have options:
- You could contact the police to learn if criminal charges or a peace bond are appropriate. With a peace bond, your partner agrees to keep the peace and follow certain conditions — for example, not contacting you for a set amount of time. A peace bond is more common after criminal charges are laid.
- You could apply to Provincial (Family) Court or BC Supreme Court for a protection order under the Family Law Act. This can limit how your partner communicates with you.
As well, there are community and healthcare services that can help with counselling and support.
For more on these options, see our information about family violence.
Step 2. If you’re moving out, decide what to take with you
If you want your children to live with you, you may want to take them with you when you move out. If you can’t do that, and you’re sure they’re safe in the home with your partner, then you may leave them. Moving out without your children does not mean you have abandoned them. (If, after you leave, your partner tries to prevent you from seeing your children or spending time with them, you should see a lawyer as soon as possible.)
If you’re taking your children with you, bring their birth certificates and passports. Also bring some of their clothing, personal belongings, and (if it’s feasible) furniture. Bring any medications and prescriptions they need.
Also bring the following important documents and information:
- your marriage certificate, if you’re married
- financial information such as your tax returns for at least three years, statements from bank accounts, investment accounts, retirement savings accounts and debt accounts, and copies of recent pay stubs
- your CareCard and other health- and dental-insurance cards
- your social insurance number (SIN) card, your driver’s licence, your passport, and any immigration papers
- copies or pictures of your partner’s financial information, such as recent pay stubs, tax returns, company records and ledgers, bank accounts, investment accounts, and retirement savings accounts
- a record of your partner’s social insurance number, CareCard number, and date of birth
Step 3. Cancel joint credit cards and accounts
Do you and your partner have any joint credit cards? Consider calling the credit card issuer to tell them you’re separating. Ask them to cancel your credit card for the joint account. You don’t want the card issuer to hold you responsible for new charges on the account if you can help it.
If you have a line of credit or an open mortgage with your partner and you worry they might withdraw more money from it, call the lender and ask them to:
- freeze the line of credit or mortgage
- reduce the credit limit to the present balance
- convert the account to deposit only
- require two signatures to withdraw more money
You should talk to a lawyer before taking these kinds of financial steps. They will give you legal advice about whether you should first let your partner know what you’re doing.
Can I lock my partner out?
Often, each spouse has as much legal right to be in the home as the other until a court decides otherwise or one of you agrees to move out. Simply not wanting to live with your partner isn’t enough for you to lock your partner out of the home.
If you’re worried there might be violence, it may be reasonable to lock your partner out until you can contact the police or get a protection order from the court. But if the possibility of violence isn’t an issue, locking out your partner could backfire. They could complain you’ve treated them unfairly. If possible, get legal advice before changing the locks.
If one partner is the sole owner of property, that doesn’t necessarily mean they can demand the other party move out or force them out. Whether one of you has the legal right to demand this will depend on the facts of each case. The police will often assist in third-party disputes over property. But, when it comes to separations, they are reluctant to interfere. They’ll tell you to see a lawyer.
Can I get a court order to make my partner leave the family home?
The Family Law Act allows the BC Supreme Court to make an order giving a spouse exclusive occupancy of the family home. This means one spouse can live in the home for a specific period of time but the other spouse can’t. This rule applies to both property that’s owned and property that’s rented.
To get an order for exclusive occupancy, you must show the judge that:
- it's practically impossible for the two of you to remain together in the same home, and
- it’s more convenient for you to live there than for your spouse to.
If there’s been family violence or there’s a risk of it, the court can order that only one person be allowed to live in the home. The court can also set conditions for contact and communication.
Who should pay the household bills?
If you want your partner to move out, or if you’re asking for an order for exclusive occupancy of the home, you should be prepared to pay the household bills. These include the rent or mortgage, utilities and taxes. If you qualify under the law as a spouse, you can apply for financial support from your partner to help cover these bills. The court can also make an order that requires one of you to pay the household bills.
If you and your partner are both legal owners of the home, your partner may be able to ask that the home be sold and the money from the sale kept “in trust” until your case is resolved.
These issues are complex. You should speak to a lawyer before deciding what to do.
Can I take money from a joint account?
If you have a joint bank account with your partner, you can usually take up to half the money in the account. Don’t take more than half. Consider not taking anything if:
- you have an income and your partner doesn’t, or
- payments for important family expenses like the mortgage come from the joint account
If you do take money from a joint account, consider letting your partner know so they’re not surprised when they see it missing.
What if my partner doesn’t want to sell the home?
If the two of you are joint owners of your family home and your partner refuses to sell, you’ll likely need to sue to force the sale of the home. The court can make orders about selling the home and how it’s to be sold. (This might include who the real estate agent should be.) If the sale of the home will prejudice (harm) your partner’s interest in the home, then:
- a court may not order the sale of the home, or
- the order may be for a later date or after other issues in the case have been settled.
You should speak with a lawyer about how to force the sale of the home and whether a court will make that order.
Should I get a separation agreement?
If you and your spouse are separating, the best plan is to make an agreement. But you need to be getting along well enough to negotiate a settlement or negotiate an agreement through your lawyers.
A separation agreement puts in writing who will live in the home. It can also sort out other issues, such as:
- if and when the home will be sold
- where the children will live
- how the children will be cared for
- whether support will be paid
Get a lawyer’s advice before you sign a separation agreement, even one that’s been negotiated by a mediator. Legal advice can help you fully understand what the agreement means and how it affects your legal rights and obligations.
Who can help
With more information
The Family Law in BC website from Legal Aid BC has information about preparing for and going through separation.
The wikibook JP Boyd on Family Law explains how to prepare for separation.
Free and low-cost legal help
Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.
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