Cohabiting owner occupiers and court regulation of occupancy rights

Regardless of whether there is a sole owner or joint owners, where the partners remain in the property after their relationship has broken down and both have occupancy rights, either can apply to the court for an order regulating or restricting the occupancy rights of the other partner. S/he can also apply to the court for an order protecting and/or enforcing her/his own occupancy rights. [1]

The court can only regulate occupancy rights in this way where the partners are joint owners or where the non-entitled cohabitee has been granted occupancy rights by the court. [2] For more information, please see the page on the right to occupy the family home.

An order restricting the rights of the non-applicant cohabitee may seek to prevent her/him from inviting certain persons into the family home, for example a new partner.

A court order regulating how partners utilise their occupancy rights could even result in them using parts of the accommodation at different times.

In a situation where, for example, one cohabitee is harassing the other in an attempt to make her/him leave, the harassed cohabitee can apply to the court for an order protecting her/his occupancy rights. [3] The court could also make an order enforcing a cohabitee's occupancy rights if the other cohabitee had ejected her/him from the property. [4]

At the same time as applying for an order enforcing her/his occupancy rights, the harassed cohabitee could apply for an order restricting the other cohabitee's access to the family home. [5]

When considering whether to make an order the court will have regard to: [6]

• 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 has offered to provide the non-entitled partner with alternative accommodation.

An order cannot be made if it would entirely exclude one of the partners from the family home unless it is made ancillary to an exclusion order. [7] For more information, please see the section on exclusion orders.

If it appears to the court that the partner who has applied for a court order (the applicant partner) has suffered a loss of occupancy rights, or that her/his occupation of the family home has been impaired as a result of a deliberate action or failure to do something on the part of the other partner (the non-applicant partner), the court can order the non-applicant partner to pay the applicant partner a sum of compensation. [8]

Prior to an order being granted the court can grant an interim order regarding occupancy rights. The non-applicant partner must be given the opportunity to be heard in court before the interim order can be granted. [9]

Any order made by the court regulating occupancy rights will cease to have effect at the same time as the original court order granting occupancy rights expires. [10] The original order will generally be issued/renewed for a maximum of six months at a time. [11] Where there are joint owners, the order regulating occupancy rights only expires when the court makes a further order to that effect. [12]