Deciding Who Will Move Out When You Separate (No. 116)
|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 it comes to deciding who moves out, and the steps to enforce them.
- 1 Understand your legal rights
- 1.1 Who should move out
- 1.2 When you move out
- 1.3 You can move back in after you’ve moved out
- 1.4 If you move out, you do not risk losing 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 Get help
Understand your legal rights
Who should move out
Some couples keep living together after they separate; it’s cheaper to live in one place with one set of household bills than in two places with two sets of bills. But this isn’t possible for everyone, particularly if there is a risk of family violence, or there is conflict in the relationship and children who live at home.
Several considerations go into deciding who will stay in the home and who will move out:
- Do the two of you get along well enough to stay in the home together?
- Will either one of you be keeping the home after separation?
- Can either of you afford to keep it?
If you have children, there are more considerations:
- Where are the children likely to stay after the separation, and who will be mostly responsible for looking after them?
- Where do the children go to school or daycare? Where are their extracurricular activities located?
- Can you afford to get a second home big enough for you and the children?
- If you’re thinking of staying in the home together for the time being, how much are the children exposed to your conflict?
It often makes sense for the person who will be primarily caring for the children or keeping the home (after buying out the other party’s interest in the home) to stay in the home, and the other person to move out.
When you move out
There’s no rule that says when you can and can’t move out, or that you must tell your partner ahead of time that you’re moving out. If it’s a very emotional separation or there has been violence between the two of you, or there is risk of violence, you might want to move out when your partner isn’t home.
You should seek legal advice if you’re unsure about whether to move out, particularly if you’re worried how it will affect who gets the home or how parenting arrangements will be decided.
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 you should let your partner know about your plans first. You may want to think twice about moving back in if there’s a risk it will escalate conflict. Also, if you can’t get along, you may need a court order to move back in or force your partner to move out. Get legal advice in this case.
You may be worried that if you move out of the family home, this will affect who gets what. Don’t worry. If you have a right to a share in the family home, you will not lose that right by moving out. However, if you move out of the home while your partner remains, it might be difficult later to convince the court you should be allowed to move back in while you work out the issues flowing from your breakup.
If the family home is in only your partner’s name, you can make a court filing to protect your interest in the property. (You need to be a “spouse”, which includes living 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 to prevent your spouse from selling it without notice to you. If a court case has started, you can file a certificate of pending litigation against the property under the Land Title Act to protect your interest in the family home. The certificate means the property can’t be refinanced or sold without you knowing. If you have a choice, a certificate will better protect you.
If you live together in rented accommodation
If you and your partner live in rented accommodation, then it often comes down to whose name is on the lease or rental agreement. That person is legally responsible for paying the rent.
If the party planning to remain in the rented accommodation and take over the related expenses is not on the lease or rental agreement, arrangements need to be made with the landlord to transfer the agreement into that party’s name.
If the lease or rental agreement is in both of your names, arrangements need to be made to transfer it into the name of the party remaining in the accommodation.
If both parties want to move out, then arrangements need to be made with the landlord to end the agreement or 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 share in the things they acquired during the relationship. This is called family property.
If you’re moving out
If you’re the one who is moving out and you’re taking the children with you, you’ll need to consider their needs when deciding what to take and what to leave behind. 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 are the one remaining in the home and your partner has taken no steps to remove their belongings, you should take the following steps before getting rid of those belongings.
If the property is in your name alone (owned or rented) and your partner’s financial interest in it is small, you can give your partner a deadline — in writing — to remove their belongings and tell them what you will do if they miss that deadline. That may motivate them to move.
If the property is in joint names (owned or rented), then your partner may have a legitimate claim to leave their possessions in the home until the claim is resolved.
Step 1. Make sure you’re safe
If you are concerned for your physical safety, you should call the police right away.
If you are being harassed by your partner but there is not a 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 certain time. You could apply to Family Court for a “protection order”, which can put limits on how your partner communicates or contacts you. As well, there are community and healthcare services that can help with counselling and support.
For more on these options, see our information on family violence (no. 155).
Step 2. If you are moving out, decide what to take with you
If you have children and want them to live with you, you may want to take them with you when you move out. If you can’t take your children with you and they are safe in the home with your partner, then you may leave them at home. Moving out without your children does not mean you have abandoned them. (If, after you move out, your partner tries to prevent you from seeing your children or spending time with them, you should see a lawyer.)
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.
Take any medications and prescriptions with you when you leave.
Also take 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. Suspend joint credit cards and accounts
If you have any joint credit cards with your partner, consider calling the credit card issuer to tell them you are separating and 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 avoid it.
If you have a line of credit or an open mortgage with your partner and you worry your partner might withdraw more money, consider calling the lender and asking 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 doing anything that might look unfair. And you should let your partner know if you take any of these steps.
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 any more than half. If you have an income and your partner does not, or if payments for important family expenses like the mortgage come from the joint account, consider not taking anything.
If you do take money from a joint account, consider letting your partner know, so they are not surprised when they access the account.
Can I get a court order to make my partner leave the family home?
The Family Law Act allows the court to make an order giving a spouse “exclusive occupancy” of the family home. This rule applies to property that is owned and property that is 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.
If there has been family violence or there’s a risk of it, the court can make an order that only one person be allowed to live in the home. It can also set conditions for contact and communication.
Can I lock my partner out?
Usually each person 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. But if you fear 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, then locking out your partner could backfire and your partner could complain you have treated them unfairly. If possible, get legal advice before locking out your partner.
Where a party is the sole owner of property, that does not necessarily mean they can demand the other party move out or force the other party out. Whether a party has the legal right to demand this will depend on the facts of each case. The police will often assist when it comes to third party disputes over property, but when it comes to separations, they are reluctant to interfere and will tell you to see a lawyer.
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, such as the rent or mortgage, utilities and taxes. If you qualify under the law as a "spouse", you can apply for support from your partner to help you pay 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 on title of your 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, and you should speak to a lawyer before deciding what to do.
What if my partner does not want to sell the home?
If you are joint owners of your family home and your partner refuses to sell the home, you will likely need to sue to force the sale of the home. The court can make orders about selling the home and how it is to be sold, including 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 what is required to force the sale of the home and whether a court will make that order.
Should I get a separation agreement?
The best solution when a couple separates is to get an agreement, as long as the couple can get along well enough to negotiate a settlement or negotiate an agreement through their 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, how the children will be cared for, and whether support will be paid. See our information on separation and separation agreements (no. 115).
Get a lawyer’s advice before you sign a separation agreement, even one negotiated by a mediator, to fully understand what the agreement means and how it affects your legal rights and obligations.
With more information
The wikibook JP Boyd on Family Law, hosted by Courthouse Libraries BC, provides comprehensive information on separation and other aspects of family law.
- Web: wiki.clicklaw.bc.ca
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