Given that divorce proceedings take a minimum of six months to resolve, and finances often take even longer than that to resolve, it can be very tempting to move out of the family home before financial matters have been concluded.
Can I move out of the family home during divorce proceedings?
In the majority of cases, we advise parties to remain in the family home if possible but there will be some cases where, for any number of reasons, that is not possible, or not comfortable, for one or both parties, or for the children.
If you do need to move out of the family home before divorce and financial matters are resolved, we strongly suggest that you obtain independent legal advice, so that your solicitor is able to protect your position in relation to the family home as much as possible, and to ensure that you receive specific advice about the risks of leaving the family home in your particular circumstances. Some important points to think about, however, include:
1) Where are you moving?
In the majority of cases, it won't be affordable to buy another property (and that wouldn't be a quick process in any event), and there won't be a second property to move into. If you are considering moving in with a new partner, it is extremely important to speak to a solicitor first, as it could have long-lasting implications in relation to the resolution of financial matters. Some people move in with parents if it is practical to do so, but you would need to think about whether there is space for any children to come and stay, for example, if you do. It is also important to be careful that it is not suggested that this is likely to be a long term solution. For most people, it will be a case of finding a rental property for a period while matters are resolved. If you do decide to rent while financial negotiations are ongoing, it is sensible to choose a property that appropriately meets the housing needs of you and any children who may be living with you, and is akin to one which you would look to rent or buy following the conclusion of the divorce process.
2) Is it affordable?
If you are considering moving into rental accommodation, you will need to consider whether it is affordable to meet the cost of rent and, potentially, half of the mortgage payments pending the resolution of financial matters. This is certainly a point for negotiation, and dependent on your specific financial circumstances, but you will continue to be liable for the mortgage (if it is in joint names), even if you move out of the family home, and will want to avoid falling into arrears.
In general, the cost of utilities is met by the party occupying the property. This means that your spouse would meet the full cost of the utilities in relation to the family home, while you meet the cost of utilities on your new property. It is important to consider whether this is affordable and, if so, be pro-active about agreeing your name coming off any bills relating to the family home.
If it is not affordable, and you need to borrow money in order to meet those costs, there are likely to be legal implications of doing so, and it is important to speak to a solicitor before taking any steps to borrow money from family or friends, for example, in order to assist with living costs.
3) What will you take with you?
One of the many reasons we caution against moving out of the family home is that it can be very difficult to resolve disputes about belongings once you have left the family home. Ideally, you and your spouse would agree the division of belongings before you leave, and you would take as many of the items that you want to retain as possible with you when you move out of the family home. This will also help to ease the financial strain of moving into an unfurnished property at a time when finances may already be challenging.
4) What will arrangements for the children look like?
If you and your spouse have been living under the same roof since separating, you may not have discussed long-term plans for the children. Moving out of the family home will often be the trigger for doing so – which parent will the children spend time with when? How will handovers take place? Who will be responsible for making sure that they do their homework? What will you do during the school holidays? It can be really difficult to have productive conversations with your spouse when tensions are already high, but it is important that you consider all of these issues to ensure that the children are as settled as possible through the process of their parents separating. It is also important that an arrangement which is unsuitable for the longer term is not set up – this is because there is a risk of a precedent being set which can then be difficult to change. We strongly suggest that you speak to a solicitor about all of the issues to consider, and to potentially ease communication between you and your spouse when reaching an agreement about how the children should spend their time.
5) Will child maintenance be payable?
If the children do not spend an equal amount of time with each parent (and sometimes, even if they do spend an equal amount of time with each parent), child maintenance is likely to become payable upon one you moving out of the family home. If this is the case, you can use the Child Maintenance Service calculator to work out how much will be payable to the parent who spends less time with the children.
This list really is just a starting point of issues to consider when moving out of the family home, but it will hopefully allow you to assess the viability of the option before seeking independent legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.