If you and your partner have separated, numerous questions will arise: Who will look after the children and with whom will they live? Who will move out? In whose name is the house? What happens to the mortgage and who will pay it? What about the bank accounts in joint names that still have money in it? What about assets or access to funds? Are both of you financially independent or do you need maintenance from your partner (or vice versa)?

The decisions you and your partner make immediately after separation will have far reaching consequences. Discuss them with us at an early stage as the law in relation to cohabitation claims is complex.

Cohabitants or former cohabitants may potentially have the following claims against their partners or former partners:

1. Claims under the Trust of Land and Appointment of Trustees (TOLATA) Act 1996

2. Claims under Schedule 1 of the Children Act 1989

3. Claims under Part IV of the Family Law Act 1996

We have over ten years’ experience in handling complex and often high net value cases, not only in England and Wales, but also internationally. We will devise a strategy with you and if necessary issue proceedings swiftly to protect your position.

Cohabitation Questions & Tips

“My partner and I have separated but she still lives with me in my property and refuses to leave. Can I change the locks of my flat?”

You will need to be careful because it is possible that you are committing a criminal offence by doing so under the Protection from Eviction Act 1977.

Protection from Eviction Act 1977

The Protection from Eviction Act 1977 states that a criminal offence of unlawful eviction may be committed by any person who deprives, or attempts to deprive, a ‘residential occupier’ of his occupation, whether such occupation is statutory or by contract. The offence is committed even where the occupier is deprived of only part of the premises, such as by locking a bedroom door, and also where this deprivation is not permanent. It must simply have the character of an eviction. Licensees do not come within the definition of ‘residential occupier’, so therefore do not benefit from the protections of the Act. You will therefore need to check whether your partner is a ‘residential occupier’ or a ‘licensee’.

Excluded tenancies

Usually, landlords wanting to evict an occupier of their property are required to obtain a court order granting them possession of the property. However, certain categories of occupation are excluded from this requirement, so the landlord need not apply to court and may just ask the occupier to leave. These categories are contained in the 1977 Act, and are referred to as ‘excluded tenancies’. They are essentially:

–  Occupiers who share accommodation with a resident landlord or a member of the landlord’s family, provided that it is the landlord’s only or principal home. ‘Accommodation’ does not include storage areas, staircases, passages or other means of access.

–  Where occupation has been granted on a temporary basis. This might include rights of occupation granted to licences or tenancies granted to people occupying a property for the purposes of a holiday.

–  Where occupation is not granted for money or money’s worth.

Although it is not necessary for the landlord to contain a court order to evict an occupier who falls in one of the excluded categories, he must still be given reasonable notice that the landlord wishes him to leave.

“My partner and I have separated but I still live in his flat and have nowhere to go. Do I have the right to stay there?”

Cohabitants and former cohabitants are ‘associated persons’ within the meaning of s 62(3)(b) of the Family Law Act 1996. As such they are entitled to apply for a non-molestation and occupation order under Part IV of the 1996 Act.

Occupation Order

If you have the right to occupy the property by virtue of a legal or beneficial interest in that property, then an application can be made under s 33 of the 1996 Act. Many cohabitants will fall into this category. S 33 (6) provides that in deciding whether to make any orders the court shall have regard to:

a)      The housing needs and housing resources of each of the parties and of any relevant child

b)      The financial resources of each of the parties

c)      The likely effect of any order, or of any decision by the court not to exercise its powers under s 33 (3) on the health, safety, or well-being of the parties and of any relevant child

d)     The conduct of the parties in relation to each other and otherwise: s 333 (6) (a)(b)(c) and (d).

In accordance with s 33 (7) the court must make an order if it appears that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order is not made (exceptions apply).

If you have no right to occupy the property but are a cohabitant or former cohabitant of your partner or former partner, who does have a right to occupy, then an application may
be made under s 36 of the 1996 Act.

In addition to the matters referred to above, the remedies under s 36 are discretionary, and the court will take account of a wider range of factors, including

a)      the nature of the relationship and in particular the level of commitment involved in it;

b)      the length of time the parties have cohabited;

c)      whether there are or have been any children who are children of both parties or for whom the parties have or have had parental responsibility;

d)     the length of time that has elapsed since the parties ceased to live together;

e)      the existence of any pending proceedings for an order for financial relief against parents under Schedule 1 of the Children Act 1989, or proceedings relating to the legal or beneficial ownership of the dwelling house.

The Court is in effect being asked to make a value judgment on the nature of the relationship and to take these factors into account in deciding whether to grant relief.

An order under s 33 may run for a specified period, until the occurrence of a specified event or until a further order, s 33(10) of the Family Law Act 1996. However, an occupation order under s 36 should not exceed six months duration, although it can be extended on one occasion for a further specified period not exceeding six months, see s 36 (10).

Top Tip

Bear in mind that an occupation order will provide you only with a certain degree of protection and peace of mind because the time you will be allowed to stay in the property is limited. Also, an occupation order does not affect any legal or beneficial interest you or your (former) partner may have in the property. Section 39(4) emphasizes that the fact that a person has applied for an occupation order shall not affect the right of any person to claim a legal or equitable interest in any property or subsequent proceedings. Therefore, use the time to investigate whether you or your (former) partner have a beneficial interest in the property under the Trust of Land and Trustees Act 1996 and/or, if you have children, under Schedule 1 of the Children Act 1989. Call us now to discuss your situation.