OCCUPANCY RIGHTS UPON SEPARATION – the commonly asked questions

The end of a relationship can often be a time of emotional upset and upheaval, but during the Covid-19 crisis we appreciate tensions are heightened and many are worried about their right to continue to live within the matrimonial or family homes, on separation.

Your options to remain living in the matrimonial or family home after separation, will depend on the legal status of your relationship and whether your name is on the title deeds or tenancy agreement. It is always best to get advice from your solicitor, tailored to your specific circumstances, but here are the answers to some commonly asked questions, to hopefully put your mind at ease.

What if I am married or in a civil partnership and my spouse/civil partner owns the house/is on the tenancy?

If you are married or in a civil partnership and your name is not on the title deeds or tenancy agreement, you still automatically have the right to occupy the property. You have automatic occupancy rights, due to the legal status of your relationship. This does not mean you necessarily own the property or that you are a named tenant, but you do have the right to live there and the right not to be automatically ejected from the property.

When do occupancy rights end?

Occupancy rights end when you get divorced/your civil partnership is dissolved. It is important to be aware that occupancy rights also end if you have not lived in the property for a continuous period of two years. Occupancy rights can also be voluntarily given up, by the signing of a formal document known as a Renunciation of Occupancy Rights, signed in the presence of a Notary Public, usually your solicitor. Seeking legal advice either before or soon after separating can ensure that you are aware of your rights and how to protect them.

What if I am not married, but have been living with my partner in their property?

If you are not married or in a civil partnership but have been living with your partner, then you do not have automatic occupancy rights, if you do not jointly own the home or if you are not named on the tenancy. However, as a former cohabitant you can apply to Court for occupancy rights. The Court will consider various factors in making its decision, such as how long you were cohabitating before the relationship broke down, the financial resources of parties, the availability of alternative accommodation and whether there are children of the relationship. Occupancy rights will only be granted for up to six months at a time, but you can reapply for a further extension if appropriate. This can provide you with the valuable time to look for alternative accommodation.

What happens if there has been domestic abuse in the relationship and I can no longer live with my spouse or ex-partner?

If you are at risk of physical or mental abuse from your spouse or ex-partner and you share/shared a home together, regardless of your relationship status, there are certain protective orders that you can apply to the Court for, in addition to applying for occupancy rights, if necessary. For more on protective orders and how Mac & Mac can help you deal with domestic abuse during the Covid-19 crisis see here.

Further advice

This area of law can be complex and it is important to obtain legal advice from a solicitor who is experienced in family law. Whilst Court orders can be sought, court action is usually the last resort and in some cases agreement can be reached with the help of your solicitor. For an appointment with one of our Family Law Specialists contact us on 01463 239 393 or on family@macandmac.co.uk

Jenna Thomson

Jenna Thomson
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Morag S. MacIntosh

Morag MacIntosh
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Fiona Campbell

Fiona Campbell
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June 4, 2020