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Separation & Divorce Legal Advice

Separation & Divorce Legal Advice

Do you need separation or divorce legal advice?

The recession has meant that many couples who are going through a separation or divorce cannot afford for one of them to move out of their matrimonial home. This situation is far from ideal and can cause conflict and tension within the household.

A question routinely asked by clients is "can they ask their spouse to move out of the matrimonial home?" The answer is yes but the spouse has to agree. This is because married couples both have occupancy rights (in the matrimonial home) whether they own it or not. If your spouse does not agree to move out then there is little that can be done unless it is having an adverse effect on your emotional or physical wellbeing, or that of a child living in the home. If this is the case then the Court has the power to exclude your spouse from the home to protect you or the child.

If you need to apply to the Court for an exclusion order preventing your spouse from entering or living within the matrimonial home then you will need evidence to prove the risk of physical harm or risk to your mental health. This needs to be independent evidence and can be in the form of a medical report, police report, or statements from your friends, family members or neighbours who have seen injuries or heard incidents.

The test for an exclusion order (to exclude someone from their home) is very high as the Court needs to be satisfied that the order is necessary for your protection and reasonable in all of the circumstances. As such, there are defences to an exclusion order. One of the more common defenses is that the matrimonial home is used for business purposes. While this is not an automatic bar to the Court granting an exclusion order it is something that will be taken into account.

If an exclusion order is granted, a number of ancillary orders can be attached and some of these are essential. Such as, warrant to eject your spouse from the home, an order prohibiting your spouse from removing furniture from the home and a power of arrest to protect you if the exclusion order is breached.

All cases are unique and if you feel you need an exclusion order it is best to get legal advice at the earliest opportunity. Get in touch if you feel you need further advice.

divorce legal advice

Written by : TC Young