If a relationship ends, one of the most common concerns is whether one person can force the other to leave a shared family home. The answer depends on your personal circumstances and there are safeguards in place to prevent a partner forcing the other out of the family home.
Are you married or in a civil partnership?
Firstly, if a couple are married or in a civil partnership and the property is owned only by one person or the tenancy is in the name of only one person, the person who owns the house or holds the tenancy has the right to stay there. In addition, they cannot force out their spouse or civil partner. A “non-entitled” spouse or civil partner has the right to occupy the family home, along with any children. Even if the house is sold to a third party, the non-entitled spouse or civil partner has the right to continue to live there.
If the property owner wishes to sell it, they would have to obtain the consent of their spouse or civil partner. If that consent is unreasonably withheld then a court would have to dispense with his/her consent.
The only way in which a spouse or civil partner can remove his or her former partner from the family home is to raise a court action and seek an exclusion order. Such an order has a very high test - it is only granted if necessary for the protection of any spouse or civil partner or child of the family from the conduct, including threatened conduct, on the part of the other spouse. It is frequently granted in cases where there has been domestic abuse.
Are you joint owners or tenants?
Secondly, if both parties are joint owners or tenants then both have the right to occupy the home and again neither can evict the other unless an exclusion order is obtained. If one person wishes to sell the house and the other does not, an action of division and sale needs to be raised to ask the court to order a sale. The other person can ask the court to postpone or refuse the sale. Sometimes the court will do this if the house is needed for the children of the marriage and there is no other alternative accommodation available.
Are you cohabiting?
The third scenario is what the situation would be where a couple are cohabiting. If only one person is the owner or tenant the other is still protected and cannot be locked out or forced to leave. However, the cohabitant’s right to occupy is not automatic and he or she has to have the right declared by a court. And the right to occupy only lasts for six months, although a court can extend the right of occupancy for a further six month period. When it comes to selling the house, cohabitants do not have the same protection as spouses.
When both cohabitants are owners or tenants then neither can insist that the other move out and if one wishes to sell then an action of division and sale will have to be raised. Unlike spouses or civil partners, cohabitants do not have the same rights to ask the court to postpone or refuse a decree of sale.
A range of factors has to be taken into account when considering what happens to the family home after separation. It’s important to obtain legal advice regarding your particular situation.
If you would like to discuss any of the issues raised in this article, please contact our family law team.
