If you and your spouse are separating, one of the most difficult and pressing issues is deciding whether one of you will move out of the family home. This is especially true if there are children involved, or if you are concerned about being able to afford the expenses that come with an additional residence. There are a lot of misconceptions people have about what will happen if they move out. This article seeks to help you better understand your legal rights if you move out of your family home after separation.

Ownership of the Family Home

Moving out of the home does not mean that you are forfeiting any of your legal rights to ownership of the family home. If your name is on title or the family home is considered family property, you are still entitled to your fair share of the home regardless of whether you move out. The same applies to your rights to any of the household items. If you would like to read further on what your entitlement to the family home may be, check out our article on excluded property and the family home.

Family Home Expenses

If your name is on the property, mortgage or lease, you are still legally responsible for these expenses even if you move out. This is because a mortgage or a lease is an agreement with a third party such as a bank or a landlord. In many cases this may be unfair to the spouse who is moving out because they are no longer receiving any of the benefit. If you or your spouse are moving out, it is very important to try and reach an agreement on who will be responsible for your ongoing joint expenses.

Moving Back into Family Home

Moving out also does not mean that you lose the right to move back into the family home. If your name is on title or you are on the lease agreement of a rental property, you still have the legal right to move back in. This applies even if you and your spouse are not trying to get back together.

Where one spouse wants to move back in after separation and the other disagrees, either spouse can apply to the Supreme Court of BC for an order for exclusive occupation of the family home. In determining whether to grant an order for exclusive occupation, the court will first determine whether shared use of the home is a practical impossibility. If it is a practical impossibility, the court will then look to see which party should occupy the home on a “balance of convenience”. The court may look at a variety of factors including whether there has been family violence, the income of the parties, and the interests of their children. If there are no significant factors favoring one party, the courts are often reluctant to make an order which changes the status quo. The balance of convenience will often favour the spouse who is currently living in the family home. As a result, if you want to move back in to the family home in the future it can be very important to try and reach an agreement with your spouse before you move out.

We hope that this article has helped you gain a better understanding of your legal rights if you move out after a separation. If you are going through a separation and would like assistance in drafting a separation agreement or going through the legal process, please give us a call at 604-449-7779.