Occupation of the family home

When a couple separate, who is entitled to occupy the family home?

Often a couple will jointly own the family home, or both be listed on the tenancy agreement.  After a separation, the parties may disagree about who should have the right to live in the family home while the relationship property is being sorted out. 

Generally, both of the owners or tenants will automatically have a right to occupy the home.  To exclude an owner or tenant, it might be necessary to obtain an occupation order, or tenancy order from the court.  The Property (Relationships) Act gives the court the discretion to grant an order allowing either spouse or partner the right to exclusively occupy the family home, or any other premises forming part of the relationship property.  The court can also decide how long the order will last, and what other terms or conditions will apply. The accommodation needs of any children are relevant when the court is deciding whether to make an order, and they will look at what is just and fair in the particular circumstances of the case.

It is also possible for the court to also make an ancillary furniture order dealing with the use of household furniture, appliances, and so on.

The law also provides mechanisms for obtaining exclusive occupation even where the person seeking occupation is not an owner or tenant (for instance where the house is owned by a Family Trust).

If occupation is necessary for protection of a partner or their children (even if there is no separation), then it will likely be quicker and more appropriate to seek occupation or tenancy orders alongside a protection order under the Domestic Violence Act.  It may be possible to apply for such an order urgently and without notice to the other party.  Often a decision can be made on the same day the application is lodged.