Script 116 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

This script discusses moving out when you separate, including: 

• who should move out
• can you lock your spouse or partner out
• getting a court order to make your spouse move out
• what to do if your spouse or partner harasses you after you separate

Who should move out?
If you have children, and you and your spouse or partner can talk about this, then two factors will influence your decision: 

• Where are the kids likely to stay after the separation, and who will be looking after them?
• Will either one of you be keeping the home?

It makes sense that the person who will be caring for the children or keeping the home should stay in the house, and that the other person should leave. What doesn’t make sense is for neither of you to leave the home (thinking this gives you a strategic advantage), with the result that both of you stay in the home, live in the conflict, and subject your kids to that conflict.

Do you risk losing your share of the property if you leave?
You may be worried that if you leave, this will affect who gets what. Don’t worry. You won’t lose your right to your share of the property if you leave. And it won’t cause you any problems in getting a divorce. But if you’re the one who moves out of the home while your spouse or partner remains, it might be difficult later to convince the court that you should be allowed to return.

If the property is registered in your spouse’s name, consider filing a Married Spouse Protection Act lien against the home to protect your interest in the property from creditors or other persons who might subsequently make a claim against it.

Can you take any of the household belongings?
You have the right to take a fair share of the household belongings. If you’re the one who is moving out and you’re taking the children with you, you’ll need to consider their needs when deciding what to take and what to leave behind. But don’t strip the place bare or take more than a fair share. Later, you can always apply to the court if there are more belongings that you want.

If it’s a very emotional separation or your spouse or partner has been violent, you might want to move out when he or she isn’t home.

What to take with you?
If you plan to leave your marriage or common-law relationship, and you want your children to live with you, you need to take them with you when you go.

Here are some of the important documents and belongings you should take with you:

• Financial information, such as your tax returns for at least three years, bank account statements, investments, debts, and copies of recent pay stubs
• Your CareCard (MSP card)
• Your passport, your children’s passports, and any immigration papers you may have
• You children’s birth certificates and CareCards
• Your children’s clothing, furniture, or personal belongings
• Photocopies of information about income and assets in your partner’s name alone, such as pay stubs, tax returns, company records and ledgers, bank accounts, investments, and RRSPs (also write down your partner’s Social Insurance Number, CareCard number and date of birth – this can be useful later if you have a dispute about money and property, or if you need to find your partner)
• Medications and prescripts for you and your children

Can you take money from a joint account?
If you have a joint bank account with your spouse or partner, you can take half the money in the account.
Also, if you have a line of credit with your spouse or partner, and you’re worried he or she will use it up to spite you, tell the bank to freeze the line of credit. But talk to a lawyer before doing anything that might look unfair.

What if you want to stay in the house?
If you have children, it might be in the kids’ best interests for them to stay in the home. The more stability children have, the easier it is when parents separate. But if you want to stay in the house with the kids, and your spouse or partner refuses to leave, you’ll have to get legal advice to find out if you can make him or her leave.

In many communities in BC, there is a government-sponsored Parenting After Separation course that talks about these things. It is one evening a week, and is free. Both you and your spouse should attend this course. For more information, call 604.660.2421 in Greater Vancouver, 250.387.6121 in Greater Victoria or toll-free 1.800.663.7867 elsewhere in BC, and ask to speak with the Family Justice Centre nearest you, or click on http://www.ag.gov.bc.ca/family-justice/help/pas/information.htm.

Can you get a court order to make your spouse leave?
If you’re married, you can apply to the court for an order for “exclusive possession.” A husband and wife – note that we are only talking about legally married couples here – usually have an equal share in their house and an equal right to live in it, no matter whose name the house is registered in. But the court can make an order for “exclusive possession” giving one spouse the legal right to stay in the house. To get an order for exclusive possession, you must show the judge two things: 

1. That it’s practically impossible for the two of you to remain together in the same home.
2. That you’re the preferred occupant.

An unmarried person can also get a similar order based on different laws to get their partner to move out.

Can you lock your spouse out?
Usually each spouse has as much legal right to be in the home as the other, until a court decides otherwise or one of you agrees to move out. Simply not wanting to live with your spouse isn’t sufficient grounds to arbitrarily lock him or her out of their home. However if you have real grounds to fear immediate violence, it may be reasonable to lock your spouse out until the police can be contacted and a restraining order obtained. But if the possibility of violence isn’t an issue, there’s a very great danger that locking out your spouse will backfire and allow him or her to complain that they’ve been treated harshly and unfairly. If possible, obtain the advice of a lawyer or assistance from the police before locking out your spouse.

Who should pay the household bills?
If you want your spouse or partner to move out, or if you’re asking for an order for exclusive possession, you should be prepared to pay the household bills, such as the rent or mortgage, utilities, taxes and the like. You can apply for an order for support from your spouse or partner to help you with these bills. But if either or both of you own the house, your spouse or partner can also ask that the house be sold and the proceeds divided or paid into court pending a “settlement” or resolution of your case. These issues are complex, so you need to speak to a lawyer before deciding what to do.

What can you do if your spouse or partner harasses you?
If your spouse or partner harasses you after you separate, you have two different options: 

1. You can apply for a restraining order. You can ask the court for a restraining order to prevent your spouse or partner from calling you or coming near your home. It usually says that if your spouse or partner disobeys the order, the police can arrest him or her. When you get the restraining order, keep a copy of the order with you at all times, so if you have to call the police, you can show them the order.
2. You can ask for a peace bond. If you can show that you’re afraid for your safety because, for example, your spouse or partner has been violent toward you, a judge can issue a peace bond against him or her. This is a promise to the court to “keep the peace and be of good behavior” and to stay away from you. Then if your spouse or partner continues to threaten or harass you, he or she might have to go back to court and could even go to jail. You don’t need a lawyer to get a peace bond. Simply contact the police and they will interview you.

For more information on restraining orders and peace bonds, refer to: 

• script 155 on “Family Violence” 
• script 217 on “Applying for a Peace Bond and Filing Assault Charges”

Should you get a separation agreement?
The best solution when you separate is to get an agreement. A separation agreement puts in writing who will live in the house. It can also sort out and settle other issues, such as if and when the house can be sold, custody, access, support and other arrangements. Make sure, however, that you get a lawyer’s advice before you sign a separation agreement, even one negotiated by a mediator, because you may not have considered everything and you don’t want to be pressured into signing.

For more information, refer to: 

• script 115 on “Separation and Separation Agreements” 
• script 124 on “Dividing Up Family Assets”

Summary
Your first decision when you separate will be whether to move out yourself, or try to have your spouse or partner move out. If you want to stay, but your spouse or partner refuses to leave, you’ll have to go to court for an order giving you the right to live in the home. Or you may be able to agree on what happens after you separate and make a written separation agreement. Once you’re living separately, you can get the help of the police and the courts if your spouse or partner refuses to leave you alone.

[updated November 2009]

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