Question: What will happen to my claim over the marital home, should I leave the home prior to getting a divorce?
Answer: Generally your claim over the matrimonial home is not affected by your decision to leave the home. However, people can live in the same home and still be separated so long as they are living separated lives in this environment. It is often important to remain in the matrimonial home for a variety of reasons. These include but are not limited to maintaining a relationship with your children, maintaining the residence, and maintaining your financial stability and minimizing expenditures. On the other hand, it may be worthwhile to leave the matrimonial home if you can afford it, as it often relieves tension between the parties. If you leave the matrimonial home, this will not impact on your rights and entitlements to share in the assets. This decision can affect your relationship with your children and what the results may be for custody.
Provided that you are a joint owner of a property or defined as a spouse under the Family Law Act, you can apply for exclusive occupation of the matrimonial residence and use of the contents. A spouse is somebody who is married or has been living with the other party for a period of at least 2 years in a continuous relationship who is not married.
The residence at issue can be owned or leased by one of the parties or both parties. It is not guaranteed that a person will receive exclusive occupancy. The person applying for exclusive occupancy will have to establish that shared use of the home is a practical impossibility and that the applicant is on balance the preferred occupant.