Cohabiting tenants and rights to occupy the home

If the couple are joint tenants, then both will have equal rights to occupy the home. This is because each of them has title to the property through either a contractual or statutory tenancy. A court order is required if one of the joint tenants wishes the other to leave the property.

When a couple are cohabiting and only one of them is the tenant, the tenant's partner has no automatic right to occupy the home. The tenant has a right to occupy that derives from having 'title' to the property through a contractual or statutory right to occupy. The non-entitled partner will only have a right to occupy the home if s/he applies successfully to the courts to have her/his occupancy rights granted. If the cohabiting non-entitled partner has no occupancy rights then s/he has no rights under the Matrimonial Homes Act.

Many of the provisions of the Matrimonial Homes Act apply to opposite sex [1] and same sex [2] cohabiting couples, and have the same effect towards any child living with the couple, as they would do to a child of a married couple. [3]

If granted, occupancy rights give:

• the non-entitled partner a right to live in the home as if s/he were the tenant

• if the tenant is a Scottish secure, assured or short assured tenant, the right to occupy the house as her/his only or principal home. As long as the couple are in a cohabiting relationship the non-entitled partner may occupy the property on behalf of the tenant and full security will be retained, for example if the tenant is in hospital. However if the non-entitled partner remains in the house after the relationship has broken down and the tenant has left, then s/he would be living in the house without right or title. The landlord could then take eviction proceedings to remove the non-entitled partner. If the landlord seeks eviction when the relationship is still on-going the non-entitled partner could seek to defend the action

• if the non-entitled partner is not in occupation, the right to enter into and occupy the home

• the right to occupy with any child residing with the cohabiting couple. [4] A child in this context includes a child or grandchild of either partner or any person who has been brought up or accepted by either partner as a child of that partner, whatever their age [5]

• the right to a court order before lawful eviction

• the right of the non-entitled partner to only lawfully be put out or kept out by a court order. S/he can pay the rent, ask for the rent to be apportioned by the court, and ensure that the landlord carries out essential repairs.

A non-entitled partner's occupancy rights in the house last as long as the period specified in the court order. This will be for a period not exceeding six months and up to six months in any subsequent order granted. If the entitled partner is no longer entitled, for example if s/he is evicted, then the court order granting occupancy rights will fall.