Whose Home Is It Any Way?

Author: Fiona Wayman
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When a relationship ends one of the most vexing concerns for many is whether one person can force the other to leave a shared family home.

There are three typical scenarios.

  • Firstly if a couple are married or in a civil partnership and the property is owned by only 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. That said they cannot force their spouse or civil partner to leave, as a “non-entitled” spouse or civil partner has the right to continue to live there. If the property owner wants to sell they would need to obtain the consent of their spouse or civil partner. If that consent was unreasonably withheld then a court order would be required to waive the need for consent. The only way in which a spouse or civil partner can remove a former partner is to raise a court action and seek an exclusion order. The threshold needed for success in this is very high and an exclusion order is only granted for the protection of any spouse or civil partner or child of the family. It is frequently granted in cases of domestic abuse.
  • 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 wants to sell and the other does not then an action of division and sale needs to be raised for the court to order a sale. The other party can ask the court to postpone or delay the sale and sometimes the court will do this if there are children of the marriage and there is no alternative accommodation.
  • Thirdly if a couple are cohabiting and only one person is the owner or tenant the other is still protected and cannot be locked out or forced to move. However the cohabitant’s right to occupy is not automatic and he or she has to have the right declared by the court with a right to occupy, if granted, only lasting for six months although the court can extend it for another six months. Where cohabitants are joint owners or tenants then neither can force the other to move out and if one party wishes to sell and the other does not then an action of division and sale will need 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.

If you would like advice on any of the issues raised above please contact Fiona Wayman on 0141 552 3422 or by email fhw@mitchells-roberton.co.uk.

About Fiona Wayman

Fiona studied law at Glasgow University and graduated in 1997. She joined Mitchells Roberton in 1998 and served her traineeship here. She quickly became a very good court lawyer and now handles family law cases, divorce and separation. She has a steely determination to get the best for her clients and is a skilled negotiator. She takes the time to listen to clients with a view to seeking pragmatic solutions wherever possible. Email: fhw@mitchells-roberton.co.uk

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