When a relationship ends, one of the most common concerns is whether one partner can force the other to leave the family home. The answer depends on your personal circumstances, but there are certainly safeguards available to prevent this happening.
The right to stay
If you are joint owners or tenants of your home, both of you have the right to stay there. Neither of you can evict the other, unless one of you obtains a court order called an exclusion order. The hurdles for obtaining these orders are very high – they’re only granted if necessary for the safety of you or your children.
What if one of you wants to sell and the other doesn’t? If you’re joint owners and your spouse or civil partner wants to sell, they can only do so by,’ asking the court to order a sale. This can be done in either a divorce action or an action of division and sale If you don’t want the sale to go ahead because there are only matters pertaining to your divorce to be resolved, you can ask the court to postpone or refuse the sale or even ask the court to transfer the property to your sole name in the divorce action. For cohabitees, the only order the court can make is for sale and whilst this may be postponed to some extent to deal with matters arising from the end of your cohabitation, the court do not have the power to prevent the sale and order a transfer to you.
Marriage v cohabitation
In both the scenarios above, it’s important to know that cohabitants do not get the same level of protection as married couples or civil partners.
In any split, the process of obtaining or contesting court orders will dial up the heat, so it’s preferable to look for alternatives. For cohabitants, a simple cohabitation agreement when you buy together can provide solutions in advance. For married couples, legal approaches such as mediation can help avoid a stalemate.