How do I get a divorce if my partner won’t leave?

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.