In the aftermath of a divorce or separation emotions will be running high and drastic measures taken. It is thus not uncommon to hear of former spouses or partners locking each other out of the house each believing that they have the right to do so.
Before a spouse or partner can change the locks on the house to exclude the other, he needs first to think about the legal consequences of his action. The issue in this matter is whether a spouse/partner has the legal right to change the locks on the house and lock out his former spouse.
It is not so easy to find a legal basis for locking out one’s former spouse/partner. It must be remembered that matrimonial properties are jointly owned. This is regardless if the house is under one spouse’s/partner’s name. The situation might be that while one has the right to change the locks on the house, the other has the equal right to get a locksmith and have the house unlocked.
Until decided in a property settlement, all assets during the marriage or relationship are co-owned. Thus, until so declared by the Court or by agreement between the parties there can be yet no exclusive occupancy over the house.
So it is possible for one party to petition the court for an order awarding exclusive occupancy of the house. Another possible arrangement that the parties can consider pending their property settlement case or divorce is to ask the court for an order that will allow them to have alternate occupancy of the house. However, the trend is that whoever has the primary care of the children will be awarded the occupancy of the house to the exclusion of the other party.
It is a slightly different story if one party voluntarily moves out of the house and transfers residence. In this situation, the party who is left in the house can change the locks for purposes of privacy and safety.