This article by Jennifer Allen looks at the extent to which either pre or post-nuptial agreements will be taken into account by the Court and also looks forward to the impact Brexit may have on this area of law.
When trespassers come to stay
In a nutshell, a trespasser is someone who occupies property without the permission of the owner. Getting rid of trespassers is easy, right? In some cases, yes. But in cases of a relationship breakdown where one partner who owns the house asks the partner to leave and that partner refuses to do so (becoming a trespasser one would think), there are certain legal tactics that the partner being asked to leave can use to evade eviction and even to force the owner to move out!
Case scenario example
Imagine a situation where two people start living together as an unmarried couple. Only one of them owns the property and the other one simply shares occupation of the property, as a licensee. In other words, the non-owner has permission from the owner to occupy the premises whilst the relationship is continuing.
What happens if the relationship breaks down and the non-owner is asked to leave? Does the non-owner have any rights to continue to occupy the property notwithstanding the relationship breakdown? Can the owner get rid of the ex-partner on the spot and change the locks because the licence has been revoked?
One would assume that all you need to do is to give “reasonable notice”. That can sometimes work. But not always. A canny occupier, who takes advice or who knows his or her way around the law, can become an unwanted, long-term house guest, or worse.
What do you need to know?
Your ex-partner may be able to apply for an emergency occupation order to prevent you from evicting them and changing the locks. Hard though it is to believe, the occupation order may even state that you need to move out and find somewhere else to live for a period of time of up to 12 months in the worst case scenario! Yes, that is right. You can be ordered to move out so that your ex-partner can remain in your property for a period of time.
In order to obtain an occupation order, the applicant (the evictee) needs to fall within one of the categories listed below:-
- The evictee owns or rents the home and it is, was or was intended to be shared with a husband or wife, civil partner, cohabitee, person the evictee is engaged to or parent of his/her child;
- The evictee does not own or rent the home but he/she is married or in a civil partnership with the owner and he/she is living in the home (known as ‘matrimonial home rights’);
- The evictee’s former husband, wife or civil partner is the owner or tenant, and the home is, was, or was intended to be their shared matrimonial home;
- the person the evictee cohabits or cohabited with is the owner or tenant, and the home is, was, or was intended to be their shared home;
- The evictee is an associated person i.e. a relative.
What happens if your ex-partner succeeds with an application for an occupation order?
- You may be required to make a promise to do or not do what is stipulated in the order. For example, you may not be able to change the locks and evict your ex-partner for a defined period specified in the order.
- You may be required to leave your home temporarily and find somewhere else to live whilst continuing to meet your mortgage or rental obligations on the property you have been excluded from.
Occupation orders may be made for a period of up to 6 months initially. Once the order expires, your ex-partner may apply for another occupation order for up to 6 months. The length of the order may vary depending on the circumstances of each case.
Whether you are someone facing eviction or someone trying to remove an occupier, it is important that you seek specialist legal advice before you take any action. Occupation orders can be a shield, or a sword, or just a pain in the neck, depending upon your perspective and whether you are a homeowner trying to dislodge a partner or a partner trying to fight for occupation rights.