Who has the right to stay in the family home during separation?
8 January 2026
When a marriage or relationship ends, one of the first concerns is often where each person will live when parties separate. Many clients raise this question early on.
It is important to understand that both partners have an equal right to occupy the property. One partner cannot force the other to leave unless there is a court order.
However, the rules around the family home can be surprising, which is why seeking clear advice early on can make a big difference.
Owning the home doesn’t tell the whole story
It is common to assume that whoever’s name is on the title deeds or the tenancy agreement automatically has the right to remain in the home.
However, legal ownership or the tenancy agreement alone does not always dictate who can stay in the property during separation.
There are additional protections in place that may temporarily or even more permanently override formal ownership arrangements.
Matrimonial home rights
If a couple are married or in a civil partnership, the non-owning spouse or partner may register what is called a matrimonial home rights notice.
This provides that the spouse/partner with protections to remain living in the family home even if they are not the legal owner and it also registers their interest in the property.
Matrimonial home rights are registered at the Land Registry and can only be registered over a property that has been used as the main/matrimonial home during the relationship.
Registering matrimonial home rights makes the non-owning spouse’s rights visible to anyone dealing with the property, which protects their interest in the property to prevent the property from being sold without their knowledge.
These rights do not create permanent ownership, but they do stay in place until the marriage or civil partnership ends officially.
What can you do if you can’t agree on who stays in the property?
When a couple cannot agree on who should stay in the home or how to share it, parties will require a court order to decide who can live in the property and on what terms.
In the circumstances, a party may need to apply for an Occupation Order.
An Occupation Order can require someone to leave the property or can restrict them to certain parts of the property. It can also set out who is responsible for payments. such as the mortgage or rent, during this period.
The court will base its decision on multiple factors, including:
- Whether either person has somewhere else to live
- Financial positions and who can manage alternative accommodation
- The needs and routines of any children
- Whether staying under the same roof is creating stress or conflict
- Any concerns about safety or harmful behaviour
Occupation Orders are usually only a temporary solution. They create some stability while longer term arrangements are worked out, whether by negotiation, mediation or as part of wider financial proceedings.
When to get advice on rights to the family home
If you feel unsure about your rights in the home or if things are becoming difficult between you and your partner, it is usually best to speak to a solicitor sooner rather than later about your options.
Do not hesitate to reach out for advice if:
- You are being pressured to leave the home
- You have already left and want to know if you can return
- You are worried the property might be sold or remortgaged without your knowledge
- You and your partner cannot agree who should stay in the property
- You feel unsafe or uncomfortable at home
If you need support determining who can stay in the family home, we are always happy to talk through the options available. Contact Mike Davidson or Harley Osborn for support.
