Married owner occupiers and rights to occupy the home

Where only one spouse is the owner (the sole owner), s/he is referred to as the entitled spouse. The other spouse is referred to as the non-entitled spouse. The entitled spouse's right to occupy the home comes from the right of ownership. The non-entitled spouse's rights to occupy the home (occupancy rights) are bestowed by virtue of the marriage. [1]

If the non-entitled spouse is not already living in the matrimonial home, s/he has the right to move in, and live there. [2] S/he can also move in any child of the family. [3]

Occupancy rights allow the non-entitled spouse 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.

The non-entitled spouse will stop having the right to occupy the home if s/he ceases to co-habit with the entitled spouse and does not occupy the matrimonial home for a period of two years. [5] This will only be the case if cohabitation ceased on or after 4 May 2006 when the relevant legislation came into effect. [6] In calculating the two-year period the court will disregard any time during which either spouse was seeking any of the following: [7]

• an order declaring, enforcing, restricting, regulating or protecting the occupancy rights of either spouse

• an exclusion order suspending the occupancy rights of either spouse

• a variation or recall of any order relating to occupancy rights.

The period that is discounted begins on the date on which an application is made for an order (or the variation of an order) and ends when such an order is granted or the application is dismissed. [8]

When the spouses are joint owners, both have equal rights to occupy the matrimonial home. This is because they both have title to the property. Although both spouses 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 owner wishes to exclude the other from the home. [9] For more information, please see the sections on exclusion orders and court regulation of occupancy rights.

Even if not a joint owner, a spouse automatically has occupancy rights to the matrimonial home by virtue of the marriage, however there may be situations when it will be advisable for a spouse to seek a court order declaring or enforcing her/his occupancy rights, for example, if s/he has been put out or is being kept out of the matrimonial home. [10] For more information, please see the section on court regulation of occupancy rights.