Cohabiting tenants and the family home

Only couples occupying family homes will be able to apply to the court for orders regulating their own and 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 non-entitled cohabitant (ie a partner who does not own and is not the tenant of the property) will not automatically have occupancy rights. Therefore, where there is an entitled and a non-entitled partner, the non-entitled partner must apply to the court for an order granting occupancy rights. [2] The court will only grant an order if the couple are cohabiting in the house as if 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 family 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]

Even where both partners have occupancy rights their property will only be classed as a family home if it falls within the legislative definition. [6] The family home is defined as a home that has been provided or made available by one or both of the cohabitees 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 family 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 a house that is to be lived in separately from the other partner then that would not be a family 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 either the non-entitled partner loses her/his occupancy rights [11] or the tenancy is transferred into the non-entitled spouse's name and the entitled spouse ceases to live there on or after 4 May 2006. [12]

Where the partners are joint tenants the house will continue to be a family home as long as the couple remain as a cohabiting couple. [13]

A property occupied by joint tenants will also cease to be a matrimonial home if one of the joint tenants becomes the sole tenant and the ex-tenant stops occupying the property. [14] This will only be the case if the transfer takes place on or after 4 May 2006. [15]

Any court orders regulating occupancy rights granted by the court while the property was a matrimonial home will cease to have effect either [16] when the occupancy rights granted to the non-entitled spouse expire or in the case of joint tenants when the court varies or revokes the order.

This legislation only applies to family homes in Scotland.