By Mark Demas
One of the first decisions that must be made after your marriage or common-law relationship ends is where you and your ex will live next. Who gets to stay in your present dwelling and who moves out is not always obvious and is sure to add to the friction in a fractious breakup.
There can be many moving parts to consider when deciding on living arrangements in this next phase of your life. Is it possible to remain in the same house during your divorce? Can you afford to move out? If there are children of the relationship will one parent be the primary caregiver and remain in the matrimonial home?
In the short term, one person may decide to go to a hotel or stay with a friend or relative while seeking a more permanent arrangement. If the breakup is amicable, it can make it easier to reach a decision. Even then there may be circumstances you may not have considered that could have an impact as you work to dissolve your relationship.
Are your legal rights protected?
The lawyers at Demas Schaefer deal with all family law matters, including divorce, child and spousal support and property division. We can offer the guidance you need as you deal with what can be a stressful and challenging time in your life.
Understand your rights
When you file for divorce, the law requires that a couple be separated and live apart for at least one year unless one spouse has been physically or mentally cruel or has committed adultery.
The concept of living separate and apart does not necessarily mean one person must move out of the matrimonial home. Instead, the couple must prove they are no longer in a romantic relationship. They may live under the same roof but in separate rooms. The court will consider such factors such as whether they share meals, a bed or have sexual relations.
If a couple has applied for a divorce based on a one-year separation, they can live together again for up to 90 days in an effort to reconcile. If they are unable to reunite, they can continue to dissolve the marriage as if they had never spent that time together.
If you are in a common-law relationship in Alberta, be aware that you are subject to the same property division rules as married couples.
The Family Property Act (FPA), which was passed in 2020, considers unmarried people living together as adult interdependent partners (AIPs) under the Adult Interdependent Relationships Act.
People qualify as AIPS if they have lived together in a relationship of interdependence for at least three years; if they have a relationship of some permanence and have a child together by birth or adoption; or if they entered into an agreement to be AIPs in accordance with the regulations.
Because adult interdependent partners are bound by the same property division laws as married couples, it is prudent to get legal advice from a knowledgeable family lawyer before deciding to move out.
Consider the financial reality
Your financial situation is an extremely important factor when deciding whether to leave the family home during a separation. When you declare the intention to end your relationship there will be many decisions to be made and a number of legal hurdles to clear before a divorce is finalized.
Because you have issues that will need to be resolved it is unlikely that you will want to sell your house in the early stages of your separation. If you have children, you will probably prefer to keep them in their home at least until the end of the school year.
Determining what you can afford should be your first consideration, keeping in mind that if you are the primary wage earner you could be expected to pay for the matrimonial home as well as your own accommodations.
Many couples own a home and live comfortably on two salaries. But that changes when the relationship ends. And today’s housing market can make it difficult to find affordable housing on one paycheque.
According to a Royal LePage report released late last year, house prices in Edmonton are expected to rise “aggressively” next year.
The aggregate price of a home in the fourth quarter of 2025 is forecast to increase nine per cent to $494,860. The median price of a single-family detached property is expected to rise 12 per cent to $554,288.
"Compared to our Western Canada counterparts, Edmonton is expecting much more aggressive price appreciation in 2025. As the city continues to hit unprecedented sales volumes, 2024 may be one of the busiest years on record. We anticipate that this momentum will be carried into next year, especially as the local population continues to grow, adding to real estate demand," broker Tom Shearer wrote in the report December.
The forecast is not must better for rental properties according to Top Edmonton Real Estate who state “vacancy rates are projected to tighten further, especially in sought-after areas like downtown and southwest Edmonton.” They predict monthly rents for a one-bedroom apartment could climb by six to eight per cent.
How to decide who leaves?
When deciding who moves out you should be aware that just because you leave your home it doesn’t mean you are giving up your rights to the property, your assets or, if you have them, your children (unless it can be proven you are a danger to them.)
Some things to consider when making the decision:
- Do you or your partner work from home making it difficult to relocate?
- Should the primary caregiver of any children be the one to stay in the home?
- Is the home big enough that you can both live comfortably in the same dwelling until your issues are resolved?
- Do you or your partner have another place to live?
Keep in mind that leaving the home when you have children could signal that your ex might be the better choice to raise them. This might be a consideration when it comes to custody, which is why you should speak to a lawyer before you decide to move out.
To lighten the financial impact of moving out when you have children, some parents may consider nesting. This arrangement allows children to remain in the family residence while their parents alternate staying in the home in an agreed-upon schedule.
Nesting is typically done on a short-term basis and parents can save the expense of paying for a rental by staying with friends or relatives when they are not in the family home.
There may also be another remedy for someone who moves out and incurs the added living expense. Though not commonly awarded in Alberta, that person can seek a court order requiring their former spouse to pay what is known as occupational rent.
What if my partner refuses to leave the home?
Both people in a relationship have a right to live in the matrimonial home. However, if your ex refuses to leave, or if there is evidence of family violence or financial hardship, you can apply to the Court of King’s Bench for an Exclusive Home Possession Order (EHPO).
This order is used when those who are married or in an adult interdependent relationship can’t decide who will stay in the home or keep certain assets at the time of their separation.
The order only stays in place until the couple or the court decides:
- Who stays in the home
- How the assets are divided
An EHPO, which takes the finances of both parties as well as the needs of children into consideration, can be granted even if the home is exclusively in your partner’s name. The interest of both partners in the ownership of the home is protected while the order is in place, which means one cannot sell or encumber the property unless their former partner agrees.
Call us today
What may seem like a good idea to ease the pain of a separation could end up costing you some important rights. This is why you should seek legal advice before moving out of the matrimonial home or signing any agreement regarding your living situation. Demas Schaefer Family Lawyers can provide constructive and creative solutions to set you on the right track.
Set up an appointment with one of our experienced family and divorce lawyers today. We offer a free 15-minute telephone or video consultation to show you how we can help.