Living together after a separation can be challenging, especially now that the coronavirus pandemic is causing us to be at home more.

Some chose to remain living in separate households at the same address in order to maintain a family environment for children, others have no choice but to stay under one roof for financial reasons.

Living with an ex-partner after a relationship has ended can have a severe emotional and mental impact on all involved – especially children. For this reason, it is unlikely that the arrangement can be sustained long term. On top of the effects on well being, there is also a legal maze you may have to navigate.

Today, I hope to give you a few tips on how best to deal with these circumstances.

If you are unmarried but living together after separation

If you are unmarried, living together after separation is slightly less complicated in the legal sense as you do not have to justify the validity of your separation to the court. It will however become troublesome if you live in rented accommodation or if you both lived in a property owned by only one of you.  

If your name is on the tenancy agreement, either as a joint tenant or as a sole tenant, you will have a contractual and legal right to occupy the property. If your name is not on the tenancy agreement, as an unmarried couple you will not likely hold any right to remain in the property post-separation. You can apply to the court for a Tenancy Transfer Order if you have good reason to remain in the property.

If the property is legally owned by one of you, this does not ordinarily give the other an automatic right to occupy following separation unless the other can show that they hold a ‘beneficial interest’ in the property that gives rise to a right of occupation. A beneficial interest can arise where the person has made (or was led to believe they were making) a financial contribution towards the property, although this can be complicated to establish and will likely require the assistance of a legal adviser.  

If you are married or in a civil partnership and planning to divorce on the basis of your separation

Legally, you can be treated as a separated couple even if you are living at the same address, but you will need to be able to demonstrate to the court that you have maintained separate households.  You will also currently have to have lived separately for 2 years minimum.

When you apply for the first decree of divorce or for dissolution of a civil partnership (CP), there is a question in the application which asks if you have lived in the same property since separation. If you answer yes, you will be required to explain the domestic circumstances involved.  You will need to demonstrate your formal separation, for example you have not been sharing a bedroom, sharing meals and shopping, or typically acting as though you are in a couple by socialising together or doing housework/washing etc for one another.  The date of separation is normally the date from which you cease the above activities.

It should be noted that the minimum period for separation is currently still 2 years and you will need the consent of the other party to achieve this.  The 5 years separation does not require any consent, but you will require to know the other parties address if you are no longer living in the same property.

If you wish to live together within the 2-year period for the purpose of seeing if the relationship can work, this is fine if it is not for a period of 6 months or for periods that add up to 6 months.

You have the same right to occupy the home as your spouse, even if you are not legally the owner or a sole/joint tenant. You can agree between you who should stay in the property by way of deed/transfer or, where you cannot agree, a court can determine who should stay in the property.

Advice for living together after separation

1. Expressly separate the household

A deed of separation can be drawn up to expressly outline the terms of any agreements reached concerning how the division of households can be achieved.

2. Separate any joint accounts

Cease using joint accounts unless this is maintained in order to pay the mortgage or share expenses relating to children.

3. Consider your grounds for divorce

If you intend to rely on adultery (not available under CP) and unreasonable behaviour as grounds for divorce, this will no longer be available to you if you have lived at the same address for more than 6 months after becoming aware of the adultery or the incidents of unreasonable behaviour occurring.  

4. Seek appropriate advice

Take independent benefits advice in relation to what you can claim if you need to do so – HMRC website can give you detailed information on tax and benefits also CAB.  You should also remember to report any change in your circumstances if you are claiming benefits.

Important information on domestic violence

It is important to say that if you are experiencing Domestic Abuse you should not stay in the property. I appreciate that this is easier said than done but your physical and emotional health and safety (as well as the physical and emotional health and safety of any children) is paramount.  If you do need to leave your property you should make an application to your local housing authority for accommodation making sure that you tell them that you are making the application because you are fleeing Domestic Abuse.

Under the current lockdown situation, it is permissible to move into another person’s property if you are doing so under these circumstances even if you plan on going back when the situation has “cooled down”.

The Government are currently being asked by the various agencies to deal with how this can be handled safely in the current situation.  If you have a friend or neighbour, you trust you should try to set up a way in which you can let them know if you need help in order that they can alert the police etc immediately.  If you do not have anyone you can trust and you are able to call the police, see below

Call 999 from a mobile

If prompted, press 55 to Make Yourself Heard and this will transfer your call to the police.

Pressing 55 only works on mobiles and does not allow police to track your location.

Call 999 from a landline

If only background noise can be heard and operators cannot decide whether an emergency service is needed, then you will be connected to a police call handler.

If you replace the handset, the landline may remain connected for 45 seconds in case you pick up again.

When 999 calls are made from landlines, information about your location should be automatically available to the call handlers to help provide a response.