The atmosphere at home is unbearable. The arguments are escalating, the tension is palpable, and you really only want one thing: to leave. To find peace and quiet as soon as possible and make a fresh start. But are you allowed to move house during your divorce?
This is a dilemma where emotion and legal reality often clash. Your feelings say ‘leave’, but the law says ‘be careful. The answer to the question of whether you can move is not a simple yes or no. It depends entirely on one crucial factor: do you have minor children?
In this article, we discuss both scenarios in detail. We explain your rights and obligations when there are no children involved, and why the rules are so strict when children are involved. There are solutions, but good preparation is crucial to avoid legal disaster scenarios.
Can I move? The short answer
To clarify things right away, we need to distinguish between two completely different legal situations.
Scenario A: No children (or only adult children)
The answer: YES, you are free to move.
If no minor children are involved in the divorce, there are no legal obstacles to moving. You are an adult citizen and you are free to go wherever you want. You do not need to ask your ex-partner for permission to do so. This applies to moving within your current place of residence, to another city, or even abroad.
However, there are some important points to consider:
- The shared home: The financial settlement of the owner-occupied or rented home must be arranged.
- Division of household goods: It is wise to divide (or record) the household goods before you leave, to prevent items from ‘disappearing’.
- Administration: Consider registration in the Municipal Personal Records Database (BRP), postal addresses, and banking matters.
- Communication: Although permission is not required, it is advisable to communicate your move for practical reasons and out of courtesy.
Scenario B: With minor children
The answer: USUALLY NOT without permission.
As soon as there are minor children involved over whom you have joint custody, the situation changes drastically.
- Permission required: You need the other parent’s permission to move the children. In principle, this applies to any move, even within your own municipality.
- High risk: Moving without this consent is a huge legal risk. A court may order you to move back.
- Primary residence: In extreme cases, the court may decide that the children must go and live with the other parent.
Exception: Do you have sole custody? Then, in principle, you may move without consent. You can check how custody is arranged via the custody register at the court.
Golden rule: If you have children, you must ALWAYS obtain written consent from your ex-partner or substitute consent from the court before packing your moving boxes.
Decision tree: Can I move?
Do you want to move during your divorce? Follow this diagram:
Do you have minor children?
- NO → You are free to move.
- YES → Do you have joint custody?
- NO (you have sole custody) → You may move house (but inform the other parent in good time).
- YES → Has your ex-partner given their consent?
- YES → Put this in writing and you may move.
- NO → You are not allowed to move. Start proceedings for substitute consent.
Joint custody: why is consent required?
Many parents are unaware of the legal implications of ‘joint custody’.
What is joint custody?
If you are married or in a registered partnership, both parents automatically have joint custody of the children born within this relationship. For cohabiting couples, this custody must be requested from the court (although this is often automatic in cases of recognition).
Important to know: parental authority remains in place after divorce, unless the court explicitly decides otherwise in very exceptional cases. You can check who has parental authority by requesting a free extract from the parental authority register at the court (Rechtspraak.nl).
Why does moving house require permission?
Parental authority means that you must make important decisions about your child’s life together. Moving house falls under these ‘important decisions’, as do:
- Choice of school
- Medical treatment
- Applying for a passport
- Holidays abroad
- Choice of religion
Because a move has a direct impact on the visitation arrangement and the role of the other parent in the child’s life, you cannot decide this unilaterally.
Which moves require permission?
According to case law (judgments), permission is required for every move.
However, there is a grey area. A move that has no impact on the exercise of parental authority is sometimes permitted without explicit dispute. Think of a move within the same neighbourhood where school, sports and childcare remain unchanged. However:
- Moving to another city/municipality: Permission is always required.
- Moving that affects the care arrangement: Consent is always required.
The exact distance is not specified in the law. A judge will consider each situation individually. A move of 5 kilometres where the children remain at the same school rarely causes problems. A move of 20 kilometres or more almost always requires permission. The safe choice is to always ask for permission when in doubt.
The consequence is clear: if your ex-partner refuses to give consent, you are stuck unless you go to court to obtain substitute consent.
⚠️ CRITICAL WARNING
Moving with children without your ex-partner’s consent can lead to:
- Forced relocation by the court (relocation order)
- Loss of the children’s primary residence
- High costs and legal proceedings
- When moving abroad: possible criminal prosecution for child abduction
ALWAYS seek legal advice before moving with children!
Substitute consent from the court: the criteria
Suppose you want to move, but your ex-partner categorically refuses to give permission. Or perhaps your ex does not respond to your requests at all. In that case, you can ask the court for ‘substitute consent’ through a solicitor. The court will then make the decision that the refusing parent should have made.
The court will assess your request against a fixed set of criteria developed in case law (including Supreme Court rulings). This is not a simple sum; the court will weigh up all the interests involved.
1. Necessity of the move
The judge will first ask: why do you need to move?
- Strong grounds: A forced transfer by your employer, financial necessity (your current home is unaffordable after divorce), necessary informal care for a sick family member, or an unsafe living situation.
- Weaker grounds: A new love who lives elsewhere (after all, the partner can also move to you), an emotional desire to return to your place of birth, or simply being ‘unhappy’ in your current place of residence.
2. Degree of preparation
Have you thought through the move carefully? The judge wants to see that you are not making an impulsive decision.
- Have you already researched schools or childcare facilities in the new location?
- Have you thought about what the visitation arrangements will look like?
- Is the move financially feasible?
- Have you informed your ex-partner in good time and made a reasonable proposal?
3. Impact on the visitation arrangement
This is often the stumbling block. How will contact between the child and the other parent change?
- With a weekend arrangement (every other weekend), a greater distance is often still bridgeable.
- In the case of co-parenting (50/50 division), moving to another municipality is often disastrous for the arrangement.
- The court will consider travel time and costs. Who will pick up and drop off the children? Who will pay for petrol?
4. Division of care responsibilities
The court will look at the history. If the parent who stays behind has always been very involved (taking the children to sports, school, doctor’s appointments), the court will be less inclined to allow a move that makes this contact impossible. Were you always the primary caregiver? Then you have a slightly stronger case, but continuity for the children remains the guiding principle.
5. Communication between parents
Can you still get along? If communication is good, the judge is more likely to trust that you can manage the distance together. Is there a lot of conflict? Then a move (and the associated travel issues) may actually exacerbate the conflicts, which is harmful to the child.
6. Interests of the children
What do the children themselves want? The opinions of younger children (0-8 years) carry less weight, but children aged 12 and above will often be heard by the court. The interests of the child are central, but not decisive.
7. Interests of the parents
Since a ruling by the Supreme Court in 2008, the interests of the parent who is moving away are also taken into account. You have the right to a private life and the right to build a new life. The court must strike a balance between your freedom to organise your life and the right of the child (and your ex-partner) to undisturbed contact.
EXAMPLE FROM CASE LAW:
Dordrecht District Court: A mother wanted to move with her children from Gorinchem to Emmeloord (135 km). The father lived near Gorinchem. The court ruled that the mother was allowed to move, but had to remain within a radius of 50 km from the father. The necessity of moving to Emmeloord did not outweigh the importance of contact between the father and children.
What if you move without permission anyway?
Suppose you take a chance and move anyway. From a legal point of view, this is Russian roulette with your family’s future. The consequences could be disastrous.
1. The return order
This is the most common sanction. The court orders you to move back to your old place of residence (or within a certain radius of it) immediately. You must comply with this order, regardless of whether you already have a new tenancy agreement, have resigned from your job or the children are already attending a new school. All costs and damages are at your own expense.
2. Change of primary residence
In serious cases, the court may rule that your unilateral action shows that you are not acting in the best interests of the children. The result may be that the children’s main residence is changed to the other parent. The children will then remain in their familiar environment with your ex, and you will become the parent with the weekend arrangement.
3. Child abduction
Moving abroad without permission is legally considered child abduction. The Hague Convention on Child Abduction (valid in 87 countries) then comes into effect. The Central Authority can demand the immediate return of the child. The principle is: ‘First return, then talk’.
There are exceptions where judges legalise a situation retrospectively (“fait accompli”), for example if the children are already completely settled and moving back would be even more harmful. But do not count on this. The chances of it going wrong are many times greater.
Moving without children: practical aspects
As mentioned earlier, without minor children you are legally free. Nevertheless, there are practical matters that you should not forget when finalising the divorce.
The shared home
If you are both owners or are listed on the tenancy agreement, you will both remain jointly and severally liable for the costs until this is resolved.
- Make clear agreements in the divorce agreement: who will pay the mortgage/rent after you leave?
- When will the home be sold or taken over?
- If necessary, request a usage fee if you leave but continue to contribute to the mortgage.
Division of household effects
Conflicts about belongings often only arise after the move.
- Make a list of household effects before you move.
- Document the condition of the property and belongings with photographs.
- Ensure that your ex cannot unilaterally claim items after you have handed in the key.
Safety
Is there domestic violence or stalking? Then you do not have to give your new address to your ex-partner. You can request confidentiality of your address details in the Personal Records Database (BRP) via the local council. In extreme cases, a restraining order may be necessary. Safety always comes first in these situations.
Prohibition on moving: can your ex request this?
Yes, they can. If your ex-partner has strong indications that you intend to leave with the children without permission, they can request a prohibition on moving from the court.
The court can prohibit you from moving with the children outside a certain radius (e.g. 20 or 50 kilometres) from your current place of residence. If you violate this prohibition, you will be liable for penalties (fines) that can amount to thousands of pounds per day or per violation. In addition, a return order will often follow.
Such a prohibition is usually a temporary measure (interim relief) to maintain the status quo until a final decision has been made in proceedings on the merits regarding a possible move.
Practical step-by-step plan: How do you go about it?
Scenario A: Without children
- Make living arrangements: Who stays in the house and who pays what? Put this in writing.
- Divide the household contents: Make a list or arrange this directly in the agreement.
- Arrange new accommodation: You are free to buy or rent.
- Moving & Administration: Register with the new local authority and inform the relevant agencies.
Scenario B: With children (you consult closely with your ex)
- Orientation: Research the new location (schools, neighbourhood) and calculate the travel time.
- Proposal: Make a concrete proposal to your ex. Offer compensation for the loss of contact time (for example: you pay all travel expenses or give extra holiday days).
- Written consent: Does your ex agree? Always have this put in writing, preferably in a parenting plan or agreement drawn up by a solicitor/notary.
- Moving house: Only move house once the agreement has been signed.
Scenario C: With children (your ex refuses)
- Compiling a file: Gather evidence of the necessity of your move (employer’s statement, medical documents).
- Formal request: Send a registered letter with a detailed plan and compensation proposal.
- Solicitor: If refused, engage a specialist solicitor to assess your chances.
- Court: Start proceedings for substitute consent.
- Waiting: Do not move before the court has issued its ruling (this usually takes 3 to 6 months).
Frequently asked questions
Can I move if the divorce is not yet finalised?
Yes, legally you can. However, if you have children and there is joint custody (which is usually the case, even during the marriage), you still need permission. Without children, you are free to move.
Can I be forced to stay in the home?
No. No one can force you to live anywhere. However, if you have children, the consequence of your departure may be that the children remain in the house with the other parent.
What if my ex does not respond to my request?
No response is not consent. You cannot assume that ‘everything is fine’. After a reasonable period (2-3 weeks) and repeated requests, you must apply to the court for substitute consent.
How much does a substitute consent procedure cost?
Expect solicitor’s fees of between €2,000 and €4,000, plus approximately €300 in court fees. Are you on a low income? Then you may be eligible for subsidised legal aid (an addition), whereby you only pay a personal contribution.
Conclusion
The answer to the question ‘can I move during my divorce?’ depends entirely on your family situation. Without children, you are free to go. With children, your freedom of movement is limited by joint custody and the child’s right to contact with both parents.
Moving without permission is a high-stakes gamble, where you run the risk of being called back or even losing primary custody of your children. Therefore, always choose the royal road: proper consultation, thorough preparation and, if necessary, going to court.
Are you planning to move during your divorce and do you have questions about the legal options? Contact LawAndMore for tailored advice. Our specialist family law solicitors will assess your situation and chances and, if necessary, can initiate proceedings for substitute consent on your behalf. We can act quickly in urgent situations.
