Last updated: 1 November 2026 | Written by Andy Bell, Partner, Lane Neave
No. Separating does not oblige you to leave the family home. If you own it together, you both keep the right to stay until you agree otherwise or the Family Court makes an order. Moving out does not cost you your share either: after a relationship of three years or more, a home you own is usually divided equally, whoever stays in it. A trust-owned home is treated differently.
The main law is the Property (Relationships) Act 1976. Section 11 gives each partner an equal share of the family home in most relationships of three years or more, and section 27 lets the Family Court give one partner the sole right to occupy it for a time. Where there has been violence, the Family Violence Act 2018 applies. A court claim must usually be made within 12 months after a dissolution order (divorce) becomes final, or within 3 years after a de facto relationship ends, though the court can extend time (section 24).
What you settle in the first few weeks about who stays, who pays and who has the children tends to set the pattern for months. In Auckland, where the average asking price was $993,562 in September 2026 (realestate.co.nz), a mortgage sized for two incomes is hard to carry alongside a second rent.
Can my partner force me to move out of our house?
Your partner cannot make you leave on their own say-so if you co-own the home. Either of you can be required to leave only by agreement, a Family Court occupation order (section 27) or, where there is family violence, a Police safety order or protection order. If the house is in your partner’s sole name, your position is less secure, but the court can still make an occupation order in your favour where the home is relationship property.
A rented home is different. Tenancy Services explains that on a periodic tenancy with more than one named tenant, one tenant’s written notice ends it for all of you. To keep the rental, you can ask the Family Court for a tenancy order under section 28 vesting the tenancy in one of you.
If I move out, do I lose my share of the house?
No. Under section 11 of the Property (Relationships) Act 1976, each partner is entitled to share equally in the family home, the family chattels and the other relationship property, subject to exceptions. That does not depend on who is still living there.
The value you share is usually the value at the hearing date, not the date you separated. Section 2G sets that default, and the Supreme Court confirmed it in Burgess v Beaven [2012] NZSC 71, though the court can choose another date. So the partner who moved out usually shares in any rise in value after separation, and in any fall.
For de facto couples, moving out matters in another way. The relationship ends when you stop living together as a couple (section 2D(4)), and moving out is often the clearest evidence of that date. It starts the 3-year time limit and fixes the date your shares are worked out (section 2F).
For a de facto relationship of less than three years, the court usually cannot divide property under the Act at all, unless there is a child or the applicant made a substantial contribution, and no order would cause serious injustice (sections 2E and 14A). Short marriages have their own rules too, so get advice before you assume a half share.
A home owned by a family trust is different again. Trust property is generally not relationship property, so equal sharing does not apply to the house itself, the trustees decide who may live there, and an occupation order may not be available. The court can still take into account property transferred to a trust during the relationship and order compensation. Get advice early, as you should if a contracting-out agreement (section 21) makes the home one partner’s separate property.
If the house is in your partner’s sole name, you can register a notice of claim against the title under section 42. Land Information New Zealand explains that it stops a transfer or new mortgage being registered. The owner can apply to lapse it, and you would then need to go to court to keep it in place. Lodging one without reasonable cause can make you liable for compensation (Land Transfer Act 2017, section 148).
What is an occupation order, and how does the Family Court decide?
An occupation order gives one partner the right to occupy the family home, to the exclusion of the other, for whatever period and on whatever terms the court thinks fit (section 27). It can be made while the property division is being worked out, with conditions such as who pays the mortgage.
Section 28A tells the court to have particular regard to the need to provide a home for any minor or dependent children. The Court of Appeal in Doak v Turner [1981] 1 NZLR 18 said the inquiry is what is just and fair in the particular circumstances of the case.
In Newport v Thompkins [2023] NZFC 1758, the father applied for occupation, and the court gave it to the mother instead until the property proceedings were resolved. The parents had agreed to share care week about, so the decision turned on money: he earned several times her income and could afford to rent, and she could not. He was given 21 days to find somewhere.
| Order | Law | What it does | Typical situation |
|---|---|---|---|
| Occupation order | Property (Relationships) Act 1976, s 27 | One partner occupies the home alone for a set time | Children need a stable home while property is resolved |
| Tenancy order | Property (Relationships) Act 1976, s 28 | Puts a rented home’s tenancy in one partner’s name | Shared rental after separation |
| Furniture order | Property (Relationships) Act 1976, s 28B | Decides who uses the furniture and appliances | Made with an occupation or tenancy order |
| Police safety order | Family Violence Act 2018, ss 26 to 58 | Person must leave immediately, for up to 10 days | Police attend a family violence incident |
| Occupation order with protection order | Family Violence Act 2018, ss 115 to 120 | Protected person occupies the home, even if the other owns it | Ongoing safety risk |
What if there has been family violence?
If you are in danger, call 111.
Police can issue a Police safety order on the spot. The Community Law Manual explains that the person must leave immediately, even if they own the home, for up to 10 days.
For longer protection, you can apply to the Family Court for a protection order under the Family Violence Act 2018, and ask for an occupation order (sections 115 to 120) alongside it. The judge must be satisfied the occupation order is necessary to protect you, or is in the best interests of a child of your family, and must consider everyone’s reasonable accommodation needs.
An occupation order can be made without notice to the other person only where you or a child have been physically or sexually abused, delay could expose you to further abuse, and a protection order has been or is being granted.
Who pays the mortgage and rates after separation?
There is no automatic rule. The bank can pursue either borrower for the whole of a joint loan, whatever you have agreed. The safest course is a written interim arrangement setting out who pays the mortgage, rates and insurance.
The law can adjust for unequal payments later. Section 18B allows the court, if it considers it just, to compensate a partner for contributions made between separation and the hearing, such as paying a joint mortgage alone.
In Mohini v Asif [2024] NZFC 5260, the court reduced the compensation because the partner seeking it had also had the benefit of living in the home. A claim for occupation rent (rent from the partner who stayed) is discretionary, as the court said in Sherman v Neilson [2022] NZFC 1915.
What about the children?
The children’s need for a home is the one factor the Act singles out when the court decides who occupies the house.
So the question is often which parent will have most of the day-to-day care. Our post on working out day-to-day care for your children covers how those arrangements are made.
Moving out does not, by itself, mean you lose time with your children. In practice, though, the arrangement in place after separation can become the pattern everyone starts from, and a parent who leaves without the children may find it harder to ask for the house later. Agree a care arrangement before you go, in writing if you can.
Do we have to sell, or can one of us buy the other out?
You do not have to sell if you can agree another option, such as a buyout or deferring a sale until the children are older. A buyout needs an agreed value, usually from a registered valuer, and a lender willing to put the mortgage in one name. For an Auckland home on one income, that last step is often the hardest, so check your borrowing early.
If you cannot agree, the court can order the house sold. In Price v Price [2022] NZFC 1389, the court used section 33 to order an auction and required the partner in the house to vacate before settlement. Our relationship property division page explains how we help with these decisions.
A short interim arrangement about who stays and who pays the outgoings needs no special form. An agreement that settles who keeps the house, or how its value is divided, must meet sections 21A and 21F: in writing, signed by both of you after independent legal advice, with each signature witnessed by a lawyer who certifies that advice was given.
What has changed recently?
The Property (Relationships) Act rules on who stays in the family home have not changed in 2025 or 2026. The Law Commission’s 2019 review recommended replacing the Act, but Parliament has not legislated those proposals.
Since 17 October 2025, a person protected by a final protection order against their spouse or civil union partner can apply to dissolve the marriage or civil union without waiting the usual two years (Family Proceedings Act 1980, section 39A). Once that order is final, the 12-month time limit for a property claim starts, so get property advice first. Our guide to the five legal points on separation explains the change.
“The house is usually the largest asset by a wide margin, and the mortgage was often sized for two incomes. The clients who come to me in the most difficulty have usually moved out with nothing written down, and found six months later that no one had paid the rates or the insurance. A one-page interim agreement, signed in the first fortnight, avoids most of that.” Andy Bell, Partner, Lane Neave (Legal 500 Asia Pacific Recommended Lawyer)
What should you do?
- Do not leave in a hurry unless you are unsafe. If you are unsafe, leave and call 111 or seek a protection order.
- Before moving out, photograph the contents, take copies of key documents (title, any trust deed, mortgage statements, bank and KiwiSaver statements), keep a key, and redirect your mail.
- Agree in writing, as an interim arrangement, who stays, who pays the mortgage, rates and insurance, and how the children’s care will work for now.
- If the house is in your partner’s sole name, ask a lawyer about a notice of claim under section 42.
- Keep a record of every payment you make on the house after separation, for a possible section 18B claim.
For a fuller checklist, see what you should do before approaching a separation lawyer.
Frequently asked questions
Can I change the locks after my partner moves out?
If your partner co-owns the home or has a right to occupy it, locking them out without agreement or a court order can escalate the dispute and may be unlawful. The proper route is an agreement or an occupation order. If your safety is the concern, call 111 or apply for a protection order and an occupation order.
Can I move back into the house after I have left?
If you co-own the home and no court order or Police safety order is in force against you, you may still have a legal right to return. If one is in force, do not go back, because returning can breach the order. Either way, moving back in without agreement often inflames things, especially where children are settled, so talk to a lawyer first.
Can my ex sell the house without my agreement?
If the house is in both names, both owners must sign to sell it, although a lender can sell if the mortgage falls into serious arrears, so keep the payments up. If it is in your ex’s sole name, a notice of claim under section 42 of the Property (Relationships) Act 1976 can stop a transfer being registered. The owner can apply to lapse the notice, and you would then need to go to court to keep it in place.
How long does an occupation order last?
The Family Court sets the period and terms under section 27 of the Property (Relationships) Act 1976. Orders are usually temporary, often lasting until the property is divided or the house is sold.
Is moving out seen as abandoning the relationship property?
No. New Zealand law has no rule that a partner who leaves the family home gives up their share of it. The equal sharing rule in section 11 applies to a family home owned by either or both of you, whoever occupies it after separation, subject to exceptions such as short relationships, contracting-out agreements and homes owned by a trust.
Deciding whether to stay in the house or go? Talk it through with a relationship property lawyer before you move. Free, no obligation, 30 minutes.
Related: separation in New Zealand: 5 legal points, how do I get a divorce in New Zealand?, and relationship property division.
Andy Bell is a Partner at Lane Neave, a relationship property and employment lawyer in Wellington with over 20 years of experience. He is a Recommended Lawyer in the Legal 500 Asia Pacific and a Recommended Employment Lawyer in Doyle’s Guide 2026.
Last updated: 1 November 2026. This article is general information about New Zealand law, not legal advice on your situation.
