Am I allowed to move out of our communal home during the divorce process?

01 December 2023 ,  Crystelle Steyn 185

“I am going through a divorce and my partner is physically and emotionally abusing me and the only option left is to move out, but will it affect the division of our estate if I do?’’ “Will it count against me if I leave the property?”

These questions get asked more often these days and the simple answer is Yes, you are allowed to move out of the property and no you will not lose your right to claim half of the share of the property if you decide to move out.

There are however a few challenges when you do decide to move out for example, if you move out and months down the line decide to move back it will not be that simple and the remaining spouse can refuse you access to the property. The spouse in the house may also make it very difficult for agents to obtain access to the property if the option is there to sell the property which may lead to further legal steps and costs to obtain a court order to gain access to the property.

There might also be consequences if you moved out of the communal home prior to the divorce and if you did not contribute towards payments of the bond etc. then the spouse who does pay it might have a claim against you to forfeit the benefit of dividing the house. But, to answer the question, if you are being emotionally and physically abused and still live with your spouse during your divorce and you have alternative accommodation, then yes, move out. Alternatively inform your Divorce Attorney regarding your position to get the best legal advice going forward which sometimes lead to you still staying in the property and to rather obtain a protection order against your spouse to prevent him/her from committing any act of abuse while the divorce is still pending.

Moving out of the communal home will not affect the negotiations in the divorce proceedings towards the division of your joint estate as you are still entitled to claim half of your share in the property if the facts of each case allows for you to do so.