For someone going through a separation, all sorts of anxious questions will arise about the family home. Where am I going to live? Am I entitled to continue to live in the family home? Can my spouse or partner sell it without my knowledge?
Different rules apply to spouses and civil partners than apply to cohabiting couples.
If you are married or have entered a civil partnership, your spouse or partner cannot force you to leave the matrimonial home, without a court order. This is the case even if your spouse or civil partner owned the property you live in with them prior to your marriage or civil partnership.
If you have already left the home, and you are a joint owner of the property or you have a joint tenancy of the property, you can move back into the property if you wish to.
If you are not a joint owner or joint tenant and your partner refuses to allow you to move back into the matrimonial home, you should consult a solicitor as quickly as possible to raise court proceedings to ask the court to regulate your right to occupy the matrimonial home.
Cohabitants do not have an automatic right to continue to live in a family home owned or rented by their cohabitant on separation. However, it is possible to ask the court to grant you the right to live in the property for up to six months. This six month period can be extended on further application to the court.
If the family home is owned jointly with your former cohabitant, or there is a joint tenancy, you will each have the right to continue to occupy the property as long as the property remains in joint names, unless the court orders you to leave.
The law recognises that parties can be separated even while continuing to live in the same house. The fact that you are both living in the same house does not necessarily mean that you are “living as man and wife”. A couple can agree that the relationship is over and intend to lead separate lives, but remain under the same roof for a period for practical reasons.
In some circumstances that situation can become too tense or even dangerous.
If you believe that your former spouse, partner or cohabitant will pose a threat to you or your children if they are allowed to remain in the family home, the court may be persuaded to exclude them from the property. Courts are reluctant to deprive people of their home and will only do so if they believe that allowing that person to remain in the property is likely to result in physical or mental harm to you or your children. Even if you have left the family home to escape your former spouse or partner’s behaviour, the court can exclude them to allow you to move back in. Your solicitor may be able to raise a court action on your behalf in these circumstances. You should consult a solicitor as soon as possible if you are in this situation.
It will not be possible for a spouse or civil partner who is the sole owner of the property to sell the property without the prior written agreement of their spouse or civil partner, as long as their occupancy rights exist.
Jointly owned property cannot be sold without the prior agreement of both parties or a court order for sale.
You may be able to negotiate with your spouse, civil partner or former cohabitant to reach an amicable agreement with them as to how the property is to be divided. This could include one of you taking on the house by having the title or tenancy transferred to the sole name of one party. A court can also order this to happen.