Should you stay or should you go? 
Which spouse stays in the house?

This document is intended for general information only. It is not a substitute for independent legal advice. Readers are strongly cautioned to seek independent legal advice as the specific facts for each case can drastically alter the result.

This short article will address the issue of who gets to live in the former matrimonial home following the breakdown of a marriage. This article will assume that ownership of the home is registered jointly between the parties. It will also assume that there is at least one child living with the parties at the time of the separation.

There is a legal presumption that both joint owners are entitled to occupy the home until such time as a judge otherwise orders or the parties agree by way of a Separation Agreement. 

Readers will need to consult counsel as to how to pursue the appropriate Order or enter into Separation Agreement negotiations. That would require more time and space than the current circumstances allow. 

Assuming that a Separation Agreement cannot be reached, the test which the Courts will apply focuses on two general questions. The first is - is it practically impossible for the two separating spouses to peacefully occupy the former matrimonial home as “roommates” pending final settlement of all issues between them. In other words can one party live upstairs and the other one downstairs and avoid intolerable conflict or confrontation between themselves. 

The second, assuming that it is practically impossible for the separating spouses to live as roommates - who can move out more easily and who should be allowed to stay in occupation of the house? 

This amounts to an analysis of who can more easily obtain adequate alternate accommodation.

The first stage of the test is generally the more difficult one to meet. “Practically impossible” means more than unpleasant. If there is evidence of physical altercation that will usually suffice. In the absence of physical abuse or assaults the Court will generally require evidence of extreme psychological or emotional distress. 

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