Can You Be Legally Separated and Live in the Same House?

With rental properties hard to find and expensive to rent, our family law solicitors receive numerous enquiries about whether a couple can legally separate and live in the family home.

If you need family law advice, contact Evolve Family Law.

What is a legal separation?

A legal separation is where a husband and wife obtain a judicial separation from the family court. Applications for judicial separation are rare because:

1. If you obtain a judicial separation, you will still need to divorce at a later stage. For example, if you want to remarry or if you need a financial court order to prevent further financial claims by your former spouse.
2. You do not need a legal separation for official purposes. You can just tell agencies, such as the Inland Revenue or the Local Authority, that you are separated.

Do I need a legal separation?

People often assume that they need a legal separation or a judicial separation order, but they do not unless they have a religious or cultural objection to a divorce and want to formalise their separation. If you plan to get divorced later, you don’t need a judicial separation first, as you can sort out your financial affairs by signing a separation agreement.

Can spouses live separately in the same house?

You can separate or even divorce and still live in the same house. Some couples think that if they continue to live together, they cannot get divorced, but that isn’t correct. Under current English divorce law, you can get divorced if your marriage has irretrievably broken down by starting no-fault divorce proceedings.

Separating when your spouse will not leave the family home.

If you have decided to separate and your husband or wife will not leave the family home, you have the option to:

1. Apply for an injunction order – an occupation order can give you the right to occupy the family home to the exclusion of your partner until the long-term ownership or sale of the property is determined by agreement between you or by the court in divorce and financial settlement proceedings.
2. Apply for a spousal maintenance order and child support so that you can afford to leave the family home and rent somewhere until the long-term ownership or sale of the family home is decided.

It is best to take specialist legal advice from a divorce solicitor before leaving the family home and moving into rented accommodation. It may be best to stay in the family home if leaving will disrupt the children or if your spouse will delay sorting out a financial settlement or the sale of the property. Alternatively, you may need a child arrangement order if there is a dispute over the living arrangements for the children when you or your spouse moves out of the family home.

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Separating and cannot sell the family home.

Most people would agree that it is a tricky housing market, so whilst you may have decided to separate or divorce, you may not be able to sell the family home quickly. You can be separated or divorced and still live at the family home, although for some, it won’t be a very comfortable experience. Even in the best situations where you are splitting up amicably, it can still feel as if you are in limbo with your life suspended until you can achieve the sale of the family home.

One way to reduce the stress of waiting for the sale of the family home is to have a financial agreement in place. A separation agreement means you know who will receive what when the property is sold. Although you may have concerns about having to drop the property sale price, a fair financial settlement can still be reached if you agree to receive a percentage share of the net proceeds of sale rather than a fixed amount. That way, you are both protected, whether house values move up or down.

In divorce proceedings, a financial settlement can be reached by agreement or after financial settlement proceedings, but in either scenario, you should obtain a financial court order that records how all your assets will be divided, including the equity in the family home, savings, and pension provision.

If you are separated but don’t want to start divorce proceedings, it is still best to record the financial settlement that you have agreed to avoid one of you changing your mind about how much you should get from the sale proceeds when you have found a buyer for the house. A document, called a separation agreement, should be prepared to formalise the agreement reached.

Manchester and Cheshire divorce solicitors

The team of specialist divorce solicitors at Evolve Family Law can help you with your separation and no-fault divorce proceedings, as well as child custody and contact, and reaching a financial settlement.

If you need family law advice, contact Evolve Family Law.

The Evolve Family Law offices are in Whitefield, North Manchester and Holmes Chapel, Cheshire.