Can I Leave the Family Home Without Losing My Rights in New Brunswick?

When a relationship breaks down, moving out can feel like the only way to get peace. It also raises a worry: if you leave the house, do you give up your share of it, or your place in your children's day-to-day lives?

This article explains how leaving the family home generally interacts with property, parenting and support under New Brunswick law. It cannot cover every situation, so it also points out where the answer depends on the facts and is worth confirming with a lawyer.

This article covers the law of New Brunswick.

Does moving out end your rights?

The rules for dividing property between spouses are built around what counts as marital property, not around who is physically living in the home. Under the Marital Property Act, each spouse is entitled, on application, to have marital property divided in equal shares after a divorce, or after separation with no reasonable prospect of resuming cohabitation.

The marital home and household goods are typical family assets, and family assets are marital property whether they were acquired before or after the marriage. Whether leaving affects who may stay in the home in the meantime depends on the facts, such as who owns it and whether there are children, so ask a lawyer before you go.

Property and the home after you separate

Equal division is the starting point, not a guarantee. The Court can order unequal shares where equal division would be inequitable, looking at things like the length of cohabitation, the length of separation, when the property was acquired, and any inheritance or gifts. The Court can also exclude a family asset that was acquired before the marriage or by gift or inheritance if including it would be unfair and unreasonable to the owner.

Timing matters. An application for division must generally be made within sixty days after a spouse ceases to be a spouse because of a divorce or a declaration of nullity, although the Court can extend the time in some situations, such as where a person lacked knowledge or was prevented by circumstances beyond their control.

If you and your spouse agree on how to divide things, a separation agreement must be in writing, signed by the parties to be bound, and witnessed. A valid domestic contract generally prevails over a conflicting provision of the Act. If you sign without legal advice from someone independent of your spouse's advisor, the Court may disregard a provision where applying it would be inequitable.

Common-law partners are treated differently. The equal-division rule applies to married spouses, so a common-law partner does not get automatic equal division of the home and must rely on other routes, such as unjust enrichment, or negotiate a settlement. If you are not married, get advice before moving out.

Parenting when one parent moves out

Leaving the house does not by itself decide the parenting schedule. When a court makes a parenting order it takes into consideration only the best interests of the child, with primary consideration to the child's physical, emotional and psychological safety. A child should have as much time with each parent as is consistent with the child's best interests, but this is a guide, not a guaranteed 50/50 split.

Unless a written agreement or a court order says otherwise, parents of a child share parenting time and decision-making responsibility. The person with parenting time has exclusive authority over day-to-day decisions during that time, unless the court orders otherwise.

If you plan to move away with a child, a separate set of notice rules applies. Under the Divorce Act, a person with parenting time or decision-making responsibility who intends a relocation must give written notice in the prescribed form at least 60 days beforehand. Unmarried parents follow similar rules under the Family Law Act.

Support, safety and special situations

• Spousal support: every spouse has an obligation to support themselves and their spouse, in accordance with need and to the extent capable of doing so. Common-law partners are covered only in the situations the Family Law Act lists, such as three years of continuous cohabitation with one substantially dependent on the other.
• Fault: in a divorce, the court does not consider a spouse's misconduct in relation to the marriage when making a spousal support order.
• Child support: the presumptive amount comes from the table for the number of children, the paying parent's province and income, plus any special or extraordinary expenses.
• Safety: an Emergency Intervention Order can restrain contact, grant temporary exclusive occupation of the residence and grant temporary care and custody of a child. A victim, or a prescribed person with the victim's consent, can apply.

What to do before you move out

• Speak with a family lawyer about your situation before you leave, especially if you are not married or have children.
• Copy or photograph financial records: bank and credit card statements, mortgage or lease, pension and investment statements, tax returns and debts.
• List the major assets and who bought or received each one, including any gifts or inheritances.
• Keep a record of who cares for the children and when, and keep communication with your spouse calm and in writing.
• Write down the date you separated and where each of you lived.
• If you are afraid for your safety, tell someone you trust and ask about an Emergency Intervention Order.

Frequently asked questions