Cohabiting owner occupiers and the family home

Only couples occupying family homes will be able to apply to the court for orders regulating their partner's occupancy rights in the event of relationship breakdown.

In order for a house to be classed as a family home both cohabitants must have occupancy rights. [1] A cohabitant that does not own any share in the home will not automatically have occupancy rights.

Therefore, where there is an entitled (owner) partner and a non-entitled (non-owner) partner, the non-entitled partner must apply to the court for an order granting occupancy rights. [2] The court will only grant such an order if the couple are cohabiting in the house as though they were either husband and wife or civil partners. [3] In determining whether the couple are cohabiting the courts should look at all the circumstances of the case, including how long they have been living together and whether there are any children that are either children of the couple or treated as such. [4]

The term 'cohabiting couple' has been widely interpreted by the courts. It is not always essential that the couple are still living together in the home. It was held that a couple were cohabiting despite the fact the woman had left months earlier because of violence towards her. The court stated that any other interpretation of the term would have meant that a partner who was forced out would thereby lose the protection that the act was intended to provide. [5]

Cohabiting partners that are joint owners will both automatically have occupancy rights without having to apply to the court. This is because they will both have a registered title over the property.

Even where both partners have occupancy rights their property will not necessarily be classed as a family home. It will only be a family home if it falls within the legislative definition. [6] The family home is defined by legislation as a home that has been provided or made available by one or both of the co-habitees for the couple to live in together as the family residence, or a house that has become a family residence. [7]

As well as covering houses and flats the definition also includes caravans and houseboats. The definition of a matrimonial home includes any ground or garden attached to the house and usually occupied with the house, or otherwise required for the amenity or convenience of the house. [8] If either partner has rented or bought a house that is to be lived in separately from the other spouse then that would not be a matrimonial home. [9]

If the property can be defined as a family home then either partner can apply to the court for an order regulating occupancy rights over the property. Such orders include: [10]

• exclusion orders

• orders regulating/restricting the non-applicant partner's occupancy rights

• orders protecting the applicant spouse's occupancy rights.

Where there is an entitled and a non-entitled partner the property will cease to be a family home when the non-entitled partner loses her/his occupancy rights. [11]

Where the partners are joint owners, the house will continue to be a family home as long as the couple continue to be a cohabiting couple. [12]

Any court orders relating to occupancy rights that were issued while the property came within the definition of a family home will cease to have effect either [13] when occupancy rights granted to the non-entitled spouse by the court expire, or in the case of joint owners, when the court varies or revokes the order.

Any person whose name appears on the title deeds is an owner of the property. The property may be owned by one person or the couple may own it jointly. The title deeds must be registered in the Land register or recorded in the General Register of Sasines. These registers contain information about the ownership of all land in Scotland. Where it is registered depends on where in Scotland the land is, and when the ownership of the land last changed. To find out who owns a particular piece of land or a house, a search of either register can be conducted for a small fee.