Cohabiting owner occupiers and rights to occupy the home
Rights to occupy the home are dependant on whether the home is solely or jointly owned. Even where a cohabitee is not joint owner and does not have the automatic right to occupy the home, s/he can apply to the court for occupancy rights.
Where there is a sole owner
Where only one partner is the homeowner, s/he is referred to as the entitled partner. The other partner is referred to as the non-entitled partner. The owner automatically has the right to occupy the home from the right of ownership. The non-entitled partner has no automatic rights to occupy the home, but can apply to the court to have occupancy rights granted. [1] In considering whether or not cohabitation exists a court will take into account various factors, such as the length of time the partners have been living together and if there are any children of the relationship or children that are treated as if they were children of the relationship. [2]
Where there are joint owners
Where the partners are joint owners, both have equal rights to occupy the matrimonial home. This is because they both have title to the property. Although both partners have equal occupancy rights, they may not necessarily have equal ownership rights. This can usually be established by looking at the title deeds.
A court order is required if either cohabitee wishes to exclude the other from the home.
Occupancy rights
If granted, occupancy rights allow the non-entitled partner a right to continue to occupy the house. If not already in residence, the non-entitled partner can move into the home together with any child residing with the cohabiting couple. [3] Occupancy rights also allow the non-entitled partner to take responsibility for the home as if s/he were the homeowner. [4] For more information, please see the section on safeguarding occupancy rights.
A non-entitled partner's occupancy rights last as long as the period specified in the court order. This will be for a period not exceeding six months. Additional periods of up to six months can be granted by further court order. [5]
While the non-entitled partner has occupancy rights it is also possible for either partner to apply to the court for the following: [6]
an order restricting and/or regulating the entitled partner's occupancy rights
an order enforcing and/or protecting her/his own occupancy rights
an order excluding the non-applicant partner from the family home
a domestic interdict restricting the behaviour of the non-applicant partner. [7]
For more information on occupancy rights, please see the section on court regulation of rights.
Last updated: 6 August 2020