Who gets to stay in the house during separation?

Disputes over property and home ownership can be one of the biggest reasons for acrimonious separations and divorces. Couples spitting up are often unclear on whether they have a right to stay in their home once they have officially called time on their relationship. The two big determiners of how you will separate your home are whether you are married and the type of ownership you have. While it’s always wise to obtain advice from family lawyers, in this article, we explore the differing circumstances of 

When you are married

If you are going through a divorce, when it comes to your home, both parties will have equal rights to continue living in it, whether or not you own or rent the property. The family home is often the most valuable marital asset in divorce cases, but as all circumstances are different, there is no standard approach to who will stay living in the home. 

Below are the most common scenarios for how a home is split during a financial settlement: 

  • One partner buys the other out of the property and the house is put in their sole name 
  • Part of the value of the home is transferred to one partner who maintains an interest in the home, this means that when the house is sold, they would receive a portion of what it is sold for 
  • Spouses agree to keep the home in joint names with one of them living in it, and wait until any children living there turn 18 before selling it 
  • Both parties agree to sell the house and split any equity equally between themselves before buying or renting their own separate properties 
  • In rental homes, one-half of the couple may wish to take on the tenancy in their own name and remove the other person from the Tenancy Agreement  

Remember, even if one party leaves the home during a divorce to reduce conflict, for example, this doesn’t mean they give up their rights to it. Both spouses have equal home rights, even if one partner does not legally own it. Neither of the spouses can be forced to leave, unless there are extenuating circumstances, i.e., domestic violence. 

When you are not married 

When you own your home jointly 

If both partners own their home jointly with both names on the title deeds, they have equal rights to live in it. There are two ways in which joint home ownership works. 

  1. Tenants in Common is when there is shared ownership with each party having a designated share of the home’s value, for instance, one party may have 40% while the other may have 60%. In these cases, it’s helpful to understand that if one of the owners dies, their share does not automatically go to the other and it can be passed on in a will.
  2. The other form of ownership is Joint Tenants. This is when both parties have an equal right to the property. Contrary to Tenants in Common, if one owner dies, the property will automatically go to the other and ownership cannot be passed on through writing a will.

When one party owns the home 

When one party has sole ownership of the property they share, only they have a right to live there. However, their spouse may too, depending on whether the non-owning partner can demonstrate beneficial interest, for example, if they lived there for a considerable period of time, contributed towards the mortgage or the purchase of the home. 

If you are not married, it’s wise to think about getting a Cohabitation Agreement, even if you are not thinking of splitting up. This will detail the portion of assets each partner owns including the home and it will also specify how things will be split if you separate.  


Whether you are married or not, it is always wise to ensure you think about where you will stand legally in terms of your living arrangements. Cohabitation agreements and pre/post-nuptial agreements (if you are married) can help protect your assets and ensure they are divided in a way both parties agree on in the event of a separation.

Interesting Related Article: “When Should You Hire a Family Law Attorney?