Approximately five million Canadians have hit a rough spot in a marriage made the decision to split with their spouses. If you make the decision, either on your own or together with your spouse, to separate, there are a few things you should take into consider before moving out of the house to ensure that you do not jeopardize your legal rights particularly with regard to your access to and relationship with your children.
Living separate and apart from your spouse might not mean moving out
Only a divorce can terminate a marriage, but a divorce requires a formal court proceeding and an order from a judge. A couple might not be ready to end their marriage and might want some time to see if they can work things out. For those couples, a separation could be the answer because it does not require a court order or any formal legal process through the courts to do it.
A couple may separate simply by agreeing to live separate and apart from each other. It is always a good idea to settle financial and family issues through negotiation and memorializing the agreement you reach with your spouse in a written agreement commonly referred to as a separation agreement, which is a legally binding contract prepared by your lawyer.
Living separate and apart does not necessarily require that one of you moves out of the house. A separated couple can be living separate and apart in the same home provided they occupy separate bedrooms and do not cohabit in a way normally associated with a married couple.
Moving out and your rights to the matrimonial home
Neither you nor your spouse can force the other to move out of the home you share as a married couple. Whether the home you reside in is a house, an apartment or a condominium that you own together or rent, neither of you can change the locks to deny the other one access. This holds true even if one of you moves out and the other remains in the home unless there is a written separation agreement or a court order granting one party the exclusive right to occupancy.
The fact that your spouse owns the property does not affect your right to live there during a separation. Moving out or staying has nothing to do with ownership. Moving out does not increase or decrease you rights to share in the assets of the marriage in the event of a divorce. You do not give up any property rights by moving out during a separation.
Financial considerations about moving out
Before deciding to move out during a separation, you should carefully review your income and financial situation to determine if you can afford to do so. Moving out means having to locate and pay for suitable house. This could be an issue if you and your spouse own the matrimonial home with a mortgage payment that must be made each month.
Relationship with your children
If you and your spouse have children together, you must take into consideration the effect of moving out during a separation could have on your relationship with them. Unless the parties in a divorce proceeding settle the issue of child custody and access to the children between themselves, courts using the following criteria to decide custody:
- Relationship each parent has with the children
- Parent who has been primary caregiver
- Parent who can offer stability to the children
- Future plans of each parent for the care of the children
- Plans for maintaining parent-child relationships in the future
Unless there is a separation agreement resolving child custody issues, you must take into consideration the effect of moving out of the home on your ability to maintain a stable relationship with your children. Your decision to move out should only come about after careful consideration of how it will affect each of the criteria a judge uses to decide custody in a divorce.
Consult with a family lawyer
A consultation with an Ontario family lawyer is essential before moving out during a separation. You need to know your rights and how moving out will affect them.