Rights of a former partner to occupy the former family home on separation and divorce

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One of the most worrying and urgent situations which confronts many former partners when their relationship breaks down, is what right they have to continue to live in the former family home. This is particularly acute if there are children.

The law in this area, created by the Family Law Act 1996, is complicated and in need of reform to meet the way in which many couples now create relationships and live their lives. What follows can only be an outline summary intended to outline the way in which the law is currently shaped.

Right of a former partner who is an owner (either jointly or sole) or has ‘home rights’

A former partner (A) who falls into one of the above categories AND the home is or was (or was intended to be) their home with another person (B), then A may apply to the court for an order confirming the right of A to remain in occupation or to be allowed back in by B.

Right of a (former) partner who is not an owner and has no home rights

A former partner (A) who is not a legal owner and has no home rights and the other partner (B) is an owner, then

(i) if A is in occupation, he/she can apply for an order not to be removed from the property or

(ii) if A is not in occupation, he/she can apply for an order to be permitted to return to the property.

Both orders are known as ‘occupation orders’.

The factors to be taken into account in deciding whether or not to make an occupation order

In deciding whether or not to make an occupation order, the court will consider

  1. The housing needs or each party and of any child(ren)

  2. The financial resources of each party

  3. The likely effect on each party of making or not making an occupation order

  4. The conduct of each party towards each other

  5. The nature of the relationship and the level of commitment to it

  6. The length of time the parties lived together and since they separated.

Other possible supplemental court orders 

The court decides to make an occupation order, it also has the ability to impose a number of other requirements such as: 

  1. Payment of sums required for repairs and maintenance of the relevant property

  2. Payment of rent or mortgage and other outgoings

  3. The right of the person granted the occupation order to use furniture and other possessions.

As with the making of occupation orders, before deciding to make the additional requirements the court will take into account the financial and personal situation of each party and arrive at a solution which is as fair as possible to both of them.

Conclusions

Occupation orders are almost always only a temporary solution. They are a method of giving security to one party pending a final settlement. They are, however, a very useful method by which the housing needs of the weaker party can be met in the short term.

If you or anyone you know, are affected by the issues raised above and would like more information or some preliminary, confidential advice, please contact one of our experienced experts in our family team by email or telephone.  

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