To stay in the home when you are not a legal owner or tenant
If you and your partner can't agree about you staying in the home when you are not a legal owner or tenant, you need a court order to allow you to stay.
A court only orders this in limited situations. For example, a court may decide that you should stay in your home as part of your right to a spousal support order. Or it could order that you can stay in your home because you have a property claim to the home.
If you want to make a property claim to say that you should be recognized as an owner of the home, you usually have a time limit of 10 years after you separate. Sometimes a court extends the time to make a claim.
To have your partner removed from the home
If you want your partner to leave the home and they are a legal owner or tenant and they refuse to leave, you need a court order. Sometimes this is called an order for "exclusive possession". It is possible to get this type of order if you're not a legal owner or tenant but it is very hard.
To get an order for exclusive possession, you usually have to show that there is a lot of conflict in the home and it is very difficult for you or your children to live in the same home as your partner.
This order doesn't affect who owns the home, only who can live in the home.
When deciding whether to make an order for exclusive possession, the court looks at things like:
- any existing court orders
- both partners' finances
- if other suitable and affordable living arrangements can be made
- if one partner has been abusive towards the other or the children
If there are children, the court looks at the best interests of the child by paying special attention to:
- how a move might affect the child
- the child's views and wishes, in some cases
An order for exclusive possession may also include specific responsibilities for the partner who lives in the home. For example, the partner living in the home may have to pay the utilities and be responsible for care of the home.
An order can also say if the other partner is allowed to pick up their personal items from the home or if they are allowed to visit the home. For example, they may only be allowed to go to the home to pick up the children for access.
To sell your home
If you're both owners of the home but can't agree to sell your home, you can also ask the court to let you sell the home.
Going to court can be a complicated process and it can take a lot of time. It can be stressful and expensive, but it is sometimes necessary to decide your issues.
You can talk to a lawyer who can help you understand what the law says about who can stay in the home after you separate from your partner. A lawyer can also explain your options and help you through the process.
If you can't afford to hire a lawyer for your whole case, you can still speak with one for general advice. Some lawyers also provide "unbundled services" or "limited scope retainer" services. This means you pay them to help you with part of your case.
If you can't afford to hire a lawyer at all, you may be able to find legal help in other places.