Jennifer is planning on leaving her marriage of 15 years to Zayne. She decided to have a consultation with me so that she could get informed before making any moves to initiate the separation. She wanted to embark on this next chapter of her life with her eyes wide open as to what lay before her and meeting with me allowed her to get greater clarity about the legal and financial road ahead. It wasn’t long before she asked me a question we hear a lot “Is it a good idea to move out of the home?” and, more specifically, “Will I lose or reduce my claim to the home if I move out?”.
Moving out of the home after separating will not remove your claim to the home under the Property (Relationships) Act. Unless your marriage was short, there is a presumption in New Zealand law that the family home will be shared equally irrespective of when or how it was acquired. If you signed a Contracting out Agreement (pre nuptial agreement) the situation may be different but, for most couples, the home will be equally shared. This entitlement remains the case even if you move out of it.
However, whether to move out or not involves some other considerations, including:
Are there safety issues that mean moving out is necessary?
Do you have dependent children who would be best served by remaining in the home, at least for a period of time?
Is a ‘nesting’ arrangement (where the children stay in the home and you each take turns moving in and out of the home to care for them) a more appropriate interim option for your family?
Do you have other family sharing the home or self contained accommodation attached to it that would be impacted by you moving out?
Do either of you run a business from home that cannot be easily moved to new premises?
Is it financially feasible to pay for alternate accommodation?
How will the mortgage, rates, insurances and other costs for the home be paid? Will there be a claim for occupation rent to be paid by the person remaining in the home?
If you leave, will the other person be a good guardian of the property – attending to its maintenance and upkeep and not running the property down?
Will the other person keep up with expenses for the home if you move out?
Is there a need for physical and mental space from one another that moving out gives you?
If you move out and the home is to be sold, how likely is it that the other person will be cooperative around arrangements for selling it including ensuring it is presentable?
Is the other person likely to "sit on their hands", getting to enjoy staying in the home and doing nothing to resolve property matters?
If you move out, how much access will you need to the home to sort through belongings?
Jennifer and I ran through some of these considerations and she started to form a plan. She recognised it was beneficial for her mental wellbeing to move out and that this outweighed her valid concerns about how well Zayne would maintain the property and how cooperative the would be on learning she was leaving. Therefore, she decided there were some jobs that she wanted to do first while she was in the home, such as having some minor repairs completed, obtaining a valuation of the home, decluttering and securing some sentimental items. She also decided to explore with a coach how best she have the separation conversation with Zayne in order to encourage him to have reasonable discussions with her at mediation or in a Collaborative process to resolve their property and financial issues.
Each client’s situation is different and the answers to their questions above will be individual to them. However, if you are able to afford some time to put a good plan in place, it can help to ensure your decision about moving from the home is a solid one.
Names and any identifying information have been altered to protect the privacy of individuals. The information in this blog is current at 1 July 2022. The information in this blog is general, educative information only. As such, it should not be relied on in place of getting your own legal advice. If you'd like to have us assist you with your own separation or property questions, then be like Jennifer and book a free consultation now.