Peter R. Higgs, Shook, Wickam, Bishop & Field

Peter R. Higgs is a Barrister & Solicitor with Shook, Wickham, Bishop & Field. He can be reached at 250.287.8355, higgs@crlawyers.ca or at www.crlawyers.ca.

When dealing with a separation or divorce, a common question I hear is, “If I leave the home am I jeopardizing my rights?”

Separations are always stressful and difficult situations; it’s not uncommon for one spouse or partner to feel like they can no longer reside in the same household with the other. This may be due to a variety of reasons such as fear, tension and/or guilt. Children tend to complicate these matters. A parent may want to leave with the children because they are trying to protect the children from harmful behaviour of the other parent or any number of other reasons. There are many factors why living together no longer works.

If you are a spouse (i.e. you have lived together in a marriage-like relationship for at least two years) or you are married, by leaving the family residence you are not giving up your right to return to the property and/or claim an interest to the property. In common law, if one person leaves a household they are not abandoning their interest in the household.

Providing there is no Court Order in place that specifically addresses who can live in the family residence, you can likely return without any difficulty. However, if a court case appears inevitable and one person leaves the house, the following factors may affect whether that person is able to return:

  • Whether there are children involved and if they remained in the house with the other parent;
  • The length of time the party that left has been out of the house;
  • Whether there was history of family violence; and
  • Other issues that may arise depending on the circumstances.

In summary, if you leave the home you are not giving up your rights. However, if you choose to leave then that may affect a court action that determines who gets to reside in the house. Clear as mud? It never hurts to talk to a lawyer before taking any drastic measures.

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