Rights to occupy the family home

A home shared by two civil partners is referred to in the civil partnership legislation as the family home. One or both civil partners must be entitled by the landlord to reside in the property. [1]

Where only one civil partner is the tenant (the sole tenant), s/he is referred to as the entitled partner. The other civil partner is referred to as the non-entitled partner. The entitled partner's right to occupy the home comes from the lease. The non-entitled partner's rights to occupy the home (known as 'occupancy rights') are bestowed by virtue of the civil partnership. [2]

If the non-entitled partner is not already living in the family home, s/he has the right to move in and live there. [3] S/he can also move in any child of the family. [4] . The child could be a child, grandchild or someone who was brought up as if they were the child of either civil partner. There is no age restriction. [5]

Occupancy rights allow the non-entitled partner to take responsibility for the family home as if s/he were the tenant. [6]

If possession is necessary to continue the tenancy and the entitled partner abandons the family home, as long as the non-entitled partner retains possession, the tenancy continues. [7] The landlord cannot terminate the tenancy on the ground that the tenant does not live there. If the landlord wants to end the tenancy normal eviction procedure would have to be used although the non-entitled partner would be entitled to defend an action for eviction. [8] The tenancy will continue in the entitled partner's name, however the non-entitled partner can apply to the court to have the tenancy transferred into her/his name. [9] If this occurs on or after 4 May 2006 and the ex-tenant partner ceases to occupy the property s/he will lose all occupancy rights in relation to the property and it will no longer be a family home. [10]

For more information, please see the page on assignation and the page on transfer of tenancies.

If the non-entitled partner does not occupy the family home for two years and during that time s/he does not cohabit with the entitled partner then s/he will lose all occupancy rights [11] and the property will cease to be a family home. This will only be the case if the period of non-cohabitation began on or after 4 May 2006. [12] For more information, please see the page on leaving the family home.

In some circumstances the non-entitled partner will lose her/his occupancy rights if the entitled partner enters into a transaction regarding the property without her/his permission. For more information, please see the page on problems with occupancy rights. [13]

When civil partners are joint tenants, both have equal rights to occupy the family home by virtue of the lease or tenancy agreement. This is because they both have a contractual or statutory right to occupy the property.

A court order is required if either partner wishes to exclude the other from the home. [14]

If only one of the joint tenants is occupying the house, the landlord cannot terminate the tenancy on that ground. [15] The landlord can only end the tenancy if any of the grounds laid out in the relevant legislation are satisfied. Any action for eviction would have to proceed against both joint tenants with both tenants being served with the appropriate notices. One joint tenant can defend an action taken against both of them and the courts have to find against both joint tenants for the action for possession to be successful.

If a joint Scottish secure tenant abandons the family home, the landlord can take action to end the interest of the tenant who has left, leaving the tenancy in the name of the remaining tenant. [16] If this occurs the ex-tenant partner will lose all occupancy rights in relation to the property and it will no longer be a family home. [17]

For more information, please see the page on Scottish secure tenancies.

A civil partner automatically has occupancy rights to the family home by virtue of the civil partnership. However there may be situations when it will be advisable for a civil partner to seek a court order declaring or enforcing her/his occupancy rights, for example if s/he has been put out or is being kept out of the family home. [18] For more information, please see the page on court regulation of occupancy rights.