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 any joint bank accounts that still have money in them? 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 early on 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 Act 1996 (TOLATA)
2. Claims under Schedule 1 of the Children Act 1989
3. Claims under Part IV of the Family Law Act 1996
No, despite how widespread the belief is. Living together for many years, even decades, and having children together does not give you the same legal rights as a married couple. Cohabitants have to rely on a patchwork of property, trust and children law to sort out their affairs on separation, which is why the outcome can be very different from a divorce.
Broadly, three routes are available to former cohabitants under English law: claims about property ownership under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), financial claims for the benefit of any children under Schedule 1 of the Children Act 1989, and applications for non molestation or occupation orders under Part IV of the Family Law Act 1996. Which of these applies depends on your circumstances.
Not without taking advice first. The Protection from Eviction Act 1977 makes it a criminal offence to unlawfully evict a “residential occupier”, even by locking them out of part of the property such as a bedroom. Whether your partner counts as a residential occupier or merely a licensee will depend on the facts, so it is important to check the position before taking any steps to remove them.
Possibly, yes. As a cohabitant or former cohabitant you are treated as an “associated person” under the Family Law Act 1996 and can apply to the court for an occupation order. The type of order and the factors the court considers depend on whether you have a legal or beneficial interest in the property. Either way, it is a short term protection, so it should be used as breathing space to sort out the longer term position.
An occupation order is a court order regulating who can live in a property, or in part of a property, and on what terms. If you have a legal or beneficial interest in the property, the order can last for a specified period, until a particular event, or until a further order of the court. If you do not have any such interest but were cohabiting with the person who does, the order is limited to six months and can be extended once for a further period of up to six months.
The court looks at the housing needs and resources of each party and any children, the parties’ financial resources, the likely effect of making or not making an order on the health, safety and wellbeing of everyone involved, and the conduct of the parties. Where the applicant has no property rights of their own, the court also considers the nature and length of the relationship, whether there are children of the relationship, and how long has passed since the parties separated.
No. This is an important point. An occupation order deals only with who can live where, and for how long. It does not affect any legal or beneficial interest either of you may have in the property, and it does not resolve who ultimately owns what share. Those questions have to be dealt with separately, usually through a TOLATA claim.
Yes. Schedule 1 of the Children Act 1989 allows a parent to bring financial claims for the benefit of the children of the relationship, regardless of whether the parents were ever married. Depending on the circumstances, this can include lump sums, provision of a home for the children to live in until they reach adulthood, and top up maintenance in cases where the paying parent has a high income.
Take advice early and put things in writing. A cohabitation agreement can set out how you own the property, how outgoings are shared, and what happens if you separate. Where you own a home together, a declaration of trust can record your respective shares. These documents cannot cover every eventuality, but they make disputes far less likely and, if a dispute does arise, they give the court a clear starting point.
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 obtain 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.
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.
Mrs F and her husband are English nationals, however, they lived abroad for most of their married life. They last lived together in Dubai where Mrs F’s husband was employed. The parties’ marriage deteriorated and Mrs F returned to England advising that she wished to remain here. She feared that her husband could start divorce proceedings abroad although all the parties’ assets were in the husband’s sole name in Europe.
We issued divorce proceedings in England on behalf of Mrs F whilst simultaneously negotiating with the husband and his solicitors. The parties reconciled, however, though Mrs F did not withdraw her petition. She secured the jurisdiction of England and Wales and can later proceed with the divorce in the event that the reconciliation does not last.
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