Civil partner owner occupiers and problems with occupancy rights

If a sole homeowner or joint home owner wants to enter into a transaction that would impact on the other civil partner's occupancy rights, the homeowner or joint homeowner must get written consent from the other civil partner first. [1] A transaction could be:

• selling the family home (except if it is sold under a compulsory purchase order)

• taking out a mortgage upon the family home

• letting the property or taking a lodger.

If the homeowner enters into a transaction with a third party without the other civil partner's consent, for example by letting out the home or taking in a lodger, the third party cannot legally move into the property as the non-entitled spouse will continue to have occupancy rights. If a third party has moved in, s/he will not be entitled to occupy the property. [2]

If, however, the non-entitled partner ceases to occupy the property for a continuous period of two years after a sale (or five years if cohabitation ceased before 4 May 2006) [3] then the property will no longer be a family home. The non-entitled spouse will lose all occupancy rights in relation to the home. The buyers will then be able to legally move in to the property. [4]

The non-entitled partner will also lose her/his occupancy rights if the buyer of the family home sells it on to another party, who buys it for value and in good faith. [5] S/he will only lose her/his occupancy rights in this way if this transaction takes place on or after 4 May 2006. [6]

Where the non-entitled partner or other joint owner will not give written consent to a transaction, the sole owner or joint owner can apply to the court to have the requirement for the other partner's written consent dispensed with. [7] The court must consider:

• if the other partner is withholding consent unreasonably [8]

• the conduct of the partners

• the respective needs and financial resources of the partners

• the needs of any child of the family

• whether the entitled partner or joint owner has offered to provide the non-entitled partner or other joint owner with alternative accommodation. [9]

The court can attach certain conditions to orders dispensing with the non-entitled partner's consent to a dealing. If the entitled partner has not yet begun negotiations with a third party [10] or if a price has not yet been set for the transaction then the court might set a minimum amount for the sale of the property and/or specify a date by which the contract of sale must be concluded. [11]

If the proposed transaction involves the entitled spouse taking out a mortgage over the family home then the court may also attach conditions to an order dispensing with the consent of the non-entitled spouse. The court can set a maximum amount for any mortgage granted over the matrimonial home. It may also insist that the mortgage be paid off by a particular date. [12]

If the court refuses to grant an order dispensing with the consent of the non-entitled partner to a transaction, it may order that the non-entitled partner [13] make payments to the entitled spouse for occupation of the family home, and/or comply with other conditions relating to her/his occupation of the home as the court may specify.

In the event that the non-entitled partner or a joint homeowner applies for an order enforcing their occupancy rights at the same time as the entitled owner or other joint owner applies for an order allowing her/him to enter a transaction without the consent of her/his civil partner, the action regarding the occupancy rights must be decided first. [14]

If the non-entitled civil partner or joint home owner has not occupied the family home for two years beginning on or after 4 May 2006 [15] and there has been no cohabitation between the partners during that time, then the property will no longer be considered a family home and the consent of the non-entitled partner will not be required before a dealing can be entered into. [16]