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What Happens to the Family Home Upon Separation?

View profile for Layla Babadi
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When a relationship ends, one of the most common concerns is whether one person can force the other to leave a shared family home. The outcome depends on your personal circumstances and there are safeguards in place to prevent a partner forcing the other out of the family home.

If a couple are married or in a civil partnership and the property is owned only by 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. In addition, they cannot force out their spouse or civil partner.  A “non-entitled” spouse or civil partner has the right to occupy the family home, along with any children.

If the property owner wishes to sell it, they would have to obtain the consent of their spouse or civil partner. If that consent is unreasonably withheld, then a court would have to dispense with his/her consent.

The only way in which a spouse or civil partner can remove his or her former partner from the family home is to seek an occupation order. Such an order has a very high test - it is only granted if necessary for the protection of any spouse or civil partner or child of the family from the conduct, including threatened conduct, on the part of the other spouse. It is often granted in cases where there has been domestic abuse.

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 occupation order is obtained. If one person wishes to sell the house and the other does not, then a Court application seeking an order for sale will be necessary. The other person can ask the court to postpone or refuse the sale. Sometimes the court will do this if the house is needed for the children of the marriage and there is no other alternative accommodation available.

When parties cohabit and are not married or civil partners, and if only one person is the owner or tenant the other is still protected and cannot be locked out or forced to leave. However, the cohabitant’s right to occupy is not automatic and he or she has to have the right declared by a court. When it comes to selling the house, cohabitants do not have the same protection as spouses.

When both cohabitants are owners or tenants then neither can insist that the other move out and if one wishes to sell then a Court application will be necessary. Unlike spouses or civil partners, cohabitants do not have the same rights to ask the court to postpone or refuse an order of sale.

A range of factors must be considered when assessing what happens to the family home after separation. It is important to obtain legal advice regarding your situation.