Separating - but who goes and who stays

[Cosmo74]

I have decided that I want to seperate from DH but he says he is not leaving the house and kids? and I am not so what do we do - i had thought about separating before and this was always the case, we tried just living separately in the same house - not big enough, but we always then talked and decided to try agian - it never changes anything so this time I want it completed - how do we decide who goes?

It depends on why you're separating. Has anyone been unfaithful?

If it's just you deciding you want out and he doesn't, why should he leave?

No no-one unfaithful - things just are not working - we have been having the same issues for years now and every time we talk about them he says he will change and we agree things but then he goes and changes the goal posts - I have had enough - I am not happy - he seems to care more about spending time with his friends than with me and kids - at weekends I feel like a single parent. I have had enough and believe me and kids would be better off if we separated - of course he will not agree cause he wants the best of both worlds - at the minute he has the wife and kids but also can decide when he is going off with his mates and I just have to put up with it. Well no more, but I know if I tell him to get out he will say no - he has nowhere to go, and will just hang around here hoping that I will calm down and give in again.

difficult one if neither of you will agree to go. Assume house in joint names and therefore you will both be wanting to stay there. If you spoke to any family lawyer about this, the first piece of advice they would give you is that you should NOT leave the matrimonial home and should stay put with the kids. Various reasons for this. Firstly, if you were to go, and decided to ultimately issue divorce proceedings, once the ancillary relief (finances) was to be considered if you had left, and DH still in the house, he would have absolutely no incentive to consider selling the house on a voluntary basis. If you were then arguing in Court (if unable to resolve matters amicably) that you and the children needed to be housed (assuming you are in temporary accomodation) your DH will no doubt argue that you have managed fine where you are and that you have no immediate housing needs. Please bear in mind, that if you are unable to agree financial matters amicably and have to issue legal proceedings once divorce underway, then ultimately, if contested, then a final hearing could be as long as 12 months from the date you first issued your financial application, if not longer. In the meantime, where would you be living? You would also need to consider the kids schooling if you were to leave the house, namely whether you would be still in the catchment area. Lots to consider.
Have you thought about counselling/mediation? It might be worth thinking about relate or perhaps mediation as if you go to a specialist family mediator, if you decide ultimately that the marriage is over, they can assist you in resolving the other issues related to the divorce, ie the issue of contact (formerly access) between the non resident parent and the children and also the finances.
If you decide you want to proceed with a divorce now, there are two facts on which you could petition immediately. These are the other persons adultery, or their unreasonable behaviour. It is relatively easy to get a petition together on unreasonable behviour which does not necessarily need to turn into a mud slinging exercise. Failing these two facts,you would need to wait until you had been separated for in excess of 2 years (if your DH would consent) or until you had been separated 5 years, if he did not consent. The final fact used for divorce is desertion for in excess of 2 years but this is rarely used. It is possible for the 2 years separation to commence whilst living under the same roof but you would need to confirm to the Court that you had lived separate and apart, ie you had been sleeping in separate bedrooms, you had not done his washing, ironing & cooking etc. Very hard when you have children. Hope this helps.

x posted. From what you've said, you could potentially petition on the basis of his unreasonable behaviour, namely he prefers to spend time with his friends as opposed to you and the children. Usually you would need 4 or 5 separate paragraphs in relation to examples of his behaviour but it does vary from court to court. Some particulars of behaviour can be quite general and go back some time but the last one must be more recent and up to date, basically the 'final straw' incident. It may well be that you need to actually get on with a divorce and issue proceedings and you may find he will then take you seriously and consider moving out. If not, you would need to wait until the financial aspects were dealt with and the court may well make an order that he move out. If however there was any violence or harassment (by him towards you) then you could potentially apply to the Court for a non-molestation and occupation order (types of injuctions which basically order him to stop bothering you and to vacate the house). I hope it wouldn't come to this though.Good luck

Thanks for advice - helps a lot - at the minute I just want him out - I know it will make me a lot happier and therefore the kids happier. I know things will be very difficult but I will have to learn to cope - like at the minute I go out to work before him and kids are even out of bed! so he gets kids up and out to school and then picks them up after he finishes work as I am home later, but I am only working tomorrow this week so I can cope with that - I do not plan to stop him seeing the kids but he will have to do his fair share at the weekends too - we both work full time - but he thinks weekends are free time for him whereas I expect them to be spent as quality family time! therein lie our problems. So if we separate he will have to decide which day he will give up at the weekend to take the kids! We have a lot to work out but first thing is to get him to move out. I told him last night we were finished - he slept on sofa but then came to bed when DS got up - he hasn't spoken to me at all yet - I know he thinks I will calm down and forget about it - how can I make him realize that this is serious this time without me leaving.

So he still hadn't spoken to me - so as usual i broke the silence and told him to go - as usual he didn't think I was serious so i told him in a calm way I was - he is moochy about now - don't know whether he will go quietly or not. I am so sad.

If he hasn't been violent to you, it's actaully not that reasonable to expect to be able to throw him out of his own home at a moment's notice. Ok it's fair enough to want to end the relationship (and you say you have tried sharing the house but Not Being A Couple and that hasn't worked).
Iagree with whoever suggested counselling/mediation as a way of either fixing the relationship or making the breakup civilised.

No he hasn't been violent but we cannot live under the same roof - if we do he will not accept that it is over - and I will probably be talked into giving it another go and then things will not change again and we will be back here again. This has been going on for years - he is so selfish when it comes to his free time, he thinks he should be able to do what he wants for himself - never thinks about family time or kids time. I feel very unloved and taken for granted, he quite often makes me feel guilty cause I have to get up early to travel to work and he gets the kids up and then collects them after work, but when I come home from work I do most of the housework etc. i started to go to gym classes 2 nights a week - just for some me time and now I am getting that threw in my face too - even though he trains twice a week and then is off every Saturday playing footie then staying for pints in the pub afterwards by the time he comes home it is the kids bedtime so he usually falls asleep on the sofa snoring!then dies all day Sunday, while I am left to get everything ready for the next week as well as trying to do stuff with kids, dinner etc.... where did this all go wrong - and why can't he see it?

I'm not saying you shouldn't end your relationship, merely that you cannot just tell him to leave his own home and expect him to go meekly upstairs and pack. You need to arrange mediation of some sort to handle the split: better to keep it amicable if you can.