Married tenants and problems with occupancy rights

Primarily involving transactions (dealings) with third parties, these actions would have an impact on her/his spouse's ability to assert her/his occupancy rights. [1] In such instances the tenant or joint tenant has to obtain in writing the consent of her/his spouse to the transaction. [2] These transactions could include:

• the tenant or joint tenant terminating the tenancy

• carrying out major improvements to the house without the permission of the court

• subletting and assigning the tenancy or taking in lodgers.

If the entitled spouse ends the tenancy or sublets the property without the consent of the non-entitled spouse, the non-entitled spouse will continue to have occupancy rights in relation to the matrimonial home.

The property will continue to be a matrimonial home as long as the couple remain married unless: [3]

• the entitled spouse ended the tenancy agreement over two years ago (or over five years ago if s/he ended the agreement before 4 May 2006) [4] and

• the non entitled spouse has not occupied the tenancy during that time.

The non-entitled spouse may also lose her/his occupancy rights if, after the entitled spouse has ended the tenancy, the landlord subsequently lets the property to a third party. In order for the non-entitled spouse to lose her occupancy rights in this way, the third party must have acquired the tenancy for value and in good faith. [5] This will only be the case if the third party acquired the tenancy on or after 4 May 2006. [6]

Unless there are joint tenants, many landlords do not ask for the consent of the tenant's spouse before agreeing to or accepting a transaction, as they are not aware of the provisions of the Matrimonial Homes Act. Where the non-entitled spouse or joint tenant leaves the matrimonial home while, for example, waiting for a long term decision about the tenancy of the matrimonial home or awaiting protective orders, s/he should inform the landlord of where s/he is staying in case the tenant or other joint tenant attempts to terminate the tenancy. This is to ensure s/he is kept informed of any action that might defeat her/his occupancy rights.

If the landlord has started proceedings for eviction against a sole tenant it may be possible for the non-entitled spouse to defend the action.

If a spouse refuses to consent in writing to a transaction involving the matrimonial home, the tenant or joint tenant can go to court to seek to have her/his spouse's consent dispensed with. [7] In deciding whether to dispense with consent the court will take into account:

• whether the consent is being withheld unreasonably

• whether the non-entitled spouse or the other joint tenant led the tenant to believe that s/he would consent to the dealing

• if consent cannot be given because of a physical or learning disability

• if the non-entitled spouse or joint tenant cannot be found after reasonable steps have been taken to locate her/him.

If the court refuses to grant an application to dispose of the non-entitled spouse's consent it may make an order requiring that non-entitled spouse make payments to the landlord in respect of her/his occupation of the matrimonial home. [8] The court may also attach other conditions to the non-entitled spouse's continued occupation of the home. [9]