Table of Contents
You can still petition for divorce even if your partner won’t leave, however, if this is the case, it is likely to be a stressful and frustrating process. If there are children involved, it is likely to be an unpleasant environment if you want to separate but your partner is unwilling.
Under the new divorce law, one person can file for divorce and go ahead with the process even if the other contests.
Consider Your Options: If your partner refuses to leave, you might feel trapped in a tense and uncomfortable living situation. However, it’s important to remember that you have options. You can seek legal advice on how to navigate this difficult time, and consider whether applying for an occupation order might be necessary to regain control over your living arrangements.
If you’d like compassionate, expert advice on your situation, contact GloverPriest’s experienced Family Law solicitors to discuss your case. Complete our contact form here.
Does my partner have a right to stay in the home?
Whether the home is jointly owned or jointly rented, both spouses will have the right to live and remain in the home.
Depending on how the house is owned, whether “Joint Tenants” or “Tenants in Common”, will determine the level of ownership. Joint tenants own the house 50/50, whereas Tenants in Common may have equal or unequal shares in the property depending on the setup.
If the home is just in your sole name, since you are married, your partner has a right to occupy the home.
On the other hand, if you are renting and the tenancy is in your name, you may be able to ask your partner to leave if he has not secured his right to be there.
Matrimonial Home Rights
Even if the home is in your name alone, your partner will automatically have matrimonial home rights under the Family Law Act 1996. This means they have a legal right to stay in the home until the divorce is finalised or a court order states otherwise. These rights are designed to ensure that one spouse isn’t left homeless or unfairly treated during the separation process.
To further protect these rights, your partner can register their matrimonial home rights with the Land Registry. Registering these rights ensures that they are legally recognised, preventing you from selling or mortgaging the property without their knowledge or consent. This registration provides an additional layer of security, especially in cases where the property is solely in your name.
If you are considering asking your partner to leave, it’s crucial to understand these rights and how they affect your situation.GloverPriest’s experienced Family Law solicitors can provide guidance on whether it’s possible to ask your partner to leave and what legal steps you might need to take to secure your position.
Talk with your partner
The first step is to try and negotiate with your partner and understand why he does not want to leave the family home. You may be able to decide what to do next by communicating. However, this may not always be possible if the breakdown is unamicable.
You can ask your partner to leave, but it is important to note that someone cannot be forced to leave their family home unless there is a safety risk such as domestic violence. In this case, the police should be contacted. You could also apply for a non-molestation order through the courts if your partner is being violent or causing harm.
Even if the house is in your name, you cannot force your partner to leave just because you want to divorce him when there are no safeguarding issues.
Consider Nesting
If you have children and your partner is refusing to leave for their benefit, one option to consider is “nesting” or “birdnesting”. This is where the children remain in the family home, and the parents take turns living there according to a set schedule.
This arrangement can reduce disruption for the children and give both parents time to adjust to the separation. Nesting is generally used as a temporary solution so the family can maintain some semblance of stability during a difficult time. However, it requires very clear communication and cooperation between both parents to work effectively.
How Nesting Works
With nesting, your children stay in the family home full-time, and the parents rotate in and out on an agreed schedule. When it’s not your turn to be in the house, you might stay in a separate place; this could be a rented apartment or with family.
Pros of Nesting
- Stability: Nesting can provide stability for your children, allowing them to stay in their familiar environment without the stress of moving back and forth between two homes.
- Time to Adjust: It gives everyone time to adjust to the new situation before making permanent decisions about who stays in the family home.
- Flexibility: Nesting allows for a flexible schedule and can help ease the pressure of making immediate decisions about living arrangements.
Cons of Nesting
- Financial Strain: Keeping up multiple living spaces can be expensive, especially if you need to rent or buy another property.
- Emotional Challenges: Sharing a home, even at different times, can be emotionally draining and might prolong the transition period.
- Complexity: Managing schedules and maintaining separate spaces can be complicated and might require a lot of planning and communication.
Is Nesting Right for You
Nesting isn’t the right solution for everyone. It works best when both parents are willing to make it work and can communicate well. However, if things are really tense between you and your partner, nesting could potentially increase the stress and difficulties.
Legal Considerations
Before jumping into a nesting arrangement, it’s a good idea to talk to an experienced solicitor. They can help you understand the legal implications, especially when it comes to property rights and responsibilities during the nesting period.
If you’re thinking about nesting as a temporary solution during your separation, GloverPriest can help you figure out whether it’s the best approach for your family and guide you through the process.
Consider an Occupation Order
Occupation orders are typically sought by individuals who have experienced domestic abuse or harassment and need protection from their partner. If you no longer feel safe in your home due to your partner's behaviour, applying for an occupation order could provide the legal protection you need by requiring your partner to leave the property.
It's important to note that while a Non-Molestation Order can prevent someone from coming near you or your property, it doesn't address who has the right to live in the home. An occupation order goes further by specifically dealing with living arrangements, making it a serious legal step that should be considered if your safety is at risk.
Given the gravity of this action, you should discuss your situation with an experienced Family Law solicitor to fully understand the implications and determine whether an occupation order is the right choice for your situation. They can guide you through the process and help ensure your rights and safety are protected.
No-Fault Divorce
Under the new no-fault divorce laws in the UK, you can now proceed with a divorce without needing to blame or prove wrongdoing by either party. This approach is designed to reduce conflict, allowing both parties to focus on reaching an agreement about important issues like living arrangements and property division. You can even apply for a no-fault divorce as an individual, and the new laws state a spouse cannot contest the decision (except for in incredibly specific circ*mstances).
No-fault divorce removes the need to cite reasons such as adultery or unreasonable behaviour, which often leads to additional stress and animosity. Instead, it lets couples acknowledge that the marriage has simply come to an end. This can make the process less contentious and more focused on finding practical solutions.
However, even with a no-fault divorce, certain challenges remain - especially when it comes to deciding who stays in the home. These decisions can still be emotionally charged and complex, which is why it’s so important to work with a solicitor. They can help guide you through these discussions, ensuring that your rights are protected and that you reach an agreement that works for everyone involved.
Protecting Your Wellbeing During the Process
Divorce is a challenging process, especially when your partner won’t leave the home. It’s essential to prioritise your mental health and personal safety during this time. Living in a tense environment can take a toll on your well-being, so consider reaching out to support groups, seeking counselling, and ensuring that you have a solid support network around you.
Taking care of your emotional and mental health is crucial during a divorce. Whether it’s speaking to a therapist, joining a support group, or leaning on friends and family, make sure you have people to talk to and lean on during this challenging time.
Seek help from a professional
If you are unable to come to an agreement between you, it is a very good idea to get advice from legal professionals such as legal advisors or through mediation. Mediation may be able to help you both come to a reasonable agreement with advice and guidance from a trained mediator. Knowing where you stand is vital and will help you to take the right steps.
If you're facing a challenging divorce and need professional advice, GloverPriest's experienced family law solicitors are here to help you navigate this difficult time. Our team can provide guidance on everything from negotiating with your partner to taking legal action if necessary.
Contact us today to discuss your situation and explore your options.
