Written by Fiona Yellowlees

Partner, Head of Family at WBW Solicitors

Fiona has undertaken most areas of family law work both for married and unmarried couple but with particular emphasis on financial aspects associated with relationship breakdown. This article was co-written with Fiona's colleague Joanne Aggett who specialises in matters relating to breakdown of marriage.

Where a relationship has broken down, who can stay in the property will depend on how the property is owned or if it is rented, the names included on the tenancy.

If you are married

If you are married, you both have a right of occupation if the property was the family home. The same applies if both are named on a tenancy but it is a little less certain if only one is the tenant.

If the other person agrees to move out and they are a joint owner, they will not lose their interest in the property; this is a common concern.

If your living arrangements are getting too much, you can ask your partner to move out. However, you cannot make them do so without a court order. If the other person agrees to move out and they are a joint owner, they will not lose their interest in the property; this is a common concern.

Occupation Orders

If your partner will not move out, and there are continuing and significant difficulties in sharing your home, it is possible to apply to the court in certain circumstances for what is know as an Occupation Order under the Family Law Act.  An Occupation Order is an order regulating who lives in the property – it may prohibit one party from remaining in the home and can extend to the surrounding area.

When considering whether to make an Occupation Order the court must consider a number of factors:

  • the housing needs/resources of each of the parties and of any relevant child;
  • the financial resources of each of the parties;
  • the likely effect of any order, or of any decision by thecourt not to exercise its powers, on the health, safety or well- being of the parties and ofany relevant child;and
  • the conduct of the partiesin relation to each other and otherwise.

As this is an order which effectively forces the other person from their home, the court will not make it without good reason.

Most applications are made with notice being given to the other person, to make sure that they have an opportunity to give their views and for the court to make an informed decision.

Non-molestation Orders

If there has been a history of domestic abuse, you could also consider an application for a Non-molestation Order alongside the Occupation Order, to prevent your partner from being physically or verbally abusive.

If the difficulties are less serious, but still really hard to live with, trying to arrange or negotiate changes and considering the needs of you both is sometimes possible and usually less stressful than court proceedings. Mediation is available to try and resolve issues through negotiation and expect on cases of emergency, should be tried before a court application.

It is always best that you seek your own independent legal advice as the circumstances of your case are specific to you.

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