The information set out below is only a basic guideline and it is advisable to seek further assistance from the CAB or a solicitor.
The sections have been divided up as follows:
- Owner Occupiers
- Domestic Violence
- Legislation & Relationship Breakdowns
If the Courts are to decide what will happen to your home, they do so using one or more of the areas of law stated below:
- Matrimonial Homes Act 1983, Family Law Act 1996 & Children Act 1989 - this covers most couples including heterosexual, gay and lesbian.
- Propert Law - owner occupied property.
- Housing Act 1996 - rights of the tenants.
- Domestic Violence and Matrimonal Proceedings Act 1976 - for domestic violence cases.
Regardless of tenure type an Occupation Order can be granted to exclude either party on a temporary basis, regardless of whether they are the owner or sole tenant.
- Owner Occupiers & Relationship Breakdowns
i) Married Sole Legal Owners The majority of the Matrimonal Homes Act 1983 has been replaced by the Family Law Act 1996.
Both of these statutes give a non-owning spouse matrimonal 'rights of occupation'. These rights are to occupy and prevent the owner-spouse from evicting or excluding the non-owner spouse during the marriage without a Court Order.
Other matrimonal rights of a non-owning spouse include:
- Occupation of the Home - except with a Court Order
- Payment Liabilities - payment towards the mortgage and bills. However, the non-owning spouse is not liable for any mortgage arrears unless stated by the Court.
- Possession Action - the non-owning spouse has the right to be notified by the lender of any mortgage possession action.
Exclusion Orders can be granted to either party if there is violence.
ii) Married Joint Owners
Both have the rights to remain in the dwelling unless excluded by the Court.
Four types of Court Orders can be granted:
- Transfer from one party to another.
- Deferred Interest Order - rights to occupy up to an agreed point in time, e.g. the children are independent. It will also be agreed who will pay the bills.
- Mesher Order - usually the wife is allowed to remain in the property rent free, sale postponed until the children are 17. A problem with this option is that when the property is sold, the wife becomes homeless and is unable to purchase a property as she is too old. This order is not very common.
- Martin Orders - the wife remains in the property for the remainder of her life or some 'trigger event' occurs such as she remarries or chooses to leave the property.
Another option is to sell the home and split the proceeds. If it can be done in a civil manner the Court will then ratify the agreement.
Ordering is normally favoured of, if it will not render the children or either party as homeless.
A Clean Break Order can be issued to enable both parties to become self-sufficient. It is only usually made if it is a childless couple, the marriage is short or there is an inadequate amount of capital.
iii) Cohabiting Sole Owner
A non-owning cohabitant does not automatically have the right to occupy the family home.
The non-owner may be able to claim some or all of the financial value of the property if:
- A person who is not the legal owner and has made financial contributions to the acquisition of the property and:
- There is a common intention that the person claiming is to have an interest.
iv) Cohabiting Legal Owners
If a couple (heterosexual, gay or lesbian) are joint legal owners, property law entitles both parties to live there. Neither can legally exclude the other without a Court Order.
In some cases joint cohabitants have rights to exclude the other owner from the home.
Joint legal owners will be 'entitled' applicants for the purpose of obtaining Occupation Orders underthe Family Law Act. This means that both heterosexual and same sex cohabitants are entitled to apply for Occupation Orders enforcing their rights to occupy in the same way as married couples with matromonal home rights. They can also exclude the other party.
Joint owners in law can be either:
- Beneficial joint tenants - both parties are equally entitled to the whole net financial value of the house.
- Tenants in Common - this means that they hold distinct shares in the property. It is quite possible to have a tenancy in common where the owners have equal shares.
- Tenancies and Relationship Breakdowns
i) Married Sole Tenants
A married couple in a tenanted property where the tenancy is in one name only. Both parties to the marriage have the right to remain in occupation of the matrimonal home regardless of who is the tenant.
The Court may order any of the options stated in paragraph B, sub section ii). If the couple do not wish to get involved in Court proceedings the three common ways of altering the tenancy using housing law are:
- Assignment - the tenancy may be assigned voluntary.
- Notice to Surrender - the tenant can give notice that he/ she wishes to terminate the tenancy or simply surrender it to the landlord.
- Leaving - the tenant may leave or disappear.
ii) Married Joint Tenants
When a marriage breaks down, the tenancy situation has to be resolved in one of the following ways:
- Married couples divorcing or seeking a nullity or judicial separation. Under matrimonal/ family law the Courts can order a transfer of tenancy from one party to the other.
- Non-divorcing married couples without children. The power to transfer the tenancy between married couples can only be excercised in conjunction with proceeding for divorce, nullity or judicial separation. The situation may have to be resolved using housing law.
- Non-divorcing married couples with children. The tenancy is likely to be decided upon by using the Children Act 1989. This does not necessarily apply to all tenancies.
- The position after divorce. If the situation regarding the property has not been resolved, then the ex-spouse will be in the same position as a cohabitant or former cohabitant.
The two long term options of settling a joint tenancy without Court are:
- Voluntary Assignment - sign the tenancy from one partner to another.
- Notice by Tenant
iii) Cohabiting Sole Tenants
In the short term the Family Housing Act 1996 will allow some cohabitants to apply for an Occupation Order, granting or enforcing rights to occupy.
The Court can agree a long term solution, but they will only grant a transfer between heterosexual cohabitants with children. This will also depend on what type of tenancy it is and if the tenancy is assignable.
iv) Cohabiting Joint Tenants
Both tenants have the right to occupy and both are joint and severally liable for the whole of the rent regardless of whether they are in occupation or not.
The Courts have the power to transfer tenancies under the Family Law Act. The criteria needed to transfer the tenancy are the same for divorcing couples with children. The Court will also decide on:
- Nature of the Relationship
- Length of Cohabitation
- Whether there are Children
- How long it has been since the cohabitation ended.
- Domestic Violence
Domestic Violence is not always physical, but can be emotional, sexual or mental abuse. It can occur between both heterosexual and homosexual couples or family members. Domestic Violence is rarely a one-off event and tends to escalate in frequency and severity over time. Domestic Violence is not necessarily physical. It can be threatening, emotional, mental, financial or withdrawing of basic rights to adults or children.
If you need to flee a violent situation, under the Housing Act 1996 Part VII, you have the right to approach any Local Authority within the country and ask for assistance, following implementation of the Homelessness Act 2002. It is not only domestic violence that is relevant, but all forms of violence or threats of violence including racially motivated violence or threats of violence likely to be carried out.Temporary accommodation will be offered in a hostel, refuge or bed and breakfast. The Local Authority may offer you this whilst you get an injunction against the violent partner (ex-partner/ husband). The Council cannot force you to return to the home that you are fleeing violence from.
IF I LEAVE WHERE CAN I GO?
If it is safe for you to do so you may chose to stay with family or friends.
Self contained units of accommodation and refuges are accessible for women both with or without children and are usually offered on a referral basis via the Local Authority or Women's Aid.
The centres and refuges offer their clients support and advice on welfare, benefits, housing and legalities.
The centrea and refuges are usually a short term solution until permanent housing has been arranged, via owner occupation, social or private rented.
How can the Local Authority Help?
Women experiencing Domestic Violence can apply to their Local Authority for rehousing under section 177 of the Housing Act 1996 (as amended by the Homeless Act 2002).
If you are a Council tenant you can still apply to the Council rehousing under Homeless provisions of the Housing Act (as amended).
If you are staying in accommodation, which has not been provided by the Council, you can apply for rehousing either through the homeless route or by joining the Councils' housing register.
If a woman is experiencing domestic violence and comes from another area of the country and is too frightened to return home the Council cannot send her back, this would be deemed unreasonable to do so.
There are 3 options:
- Leave your home -either temporarily or permanently with an option of taking legal action against the perpetrator.
- Criminal Action - action taken by the Police and prosecution in the Courts.
- Civil Proceedings - plaintiff sues and outcome can be damages and/ or injunction.
This can be obtained through a solicitor by using the Family Law Act 1996 Part VI. There are two types of orders you can apply for and these are:
Occupation Order - It determines who can live in the property and order a violent or abusive partner to leave. This is only a temporary solution, which lasts for up to six months and then renewed. Orders can be renewed several times or granted indefinately. Unless you are not married and not the legal owner or tenant, the maximum period is 12 months.
Non-molestation Order - Orders the abuser to stop committing any violence or threatening behaviour to you or the children. This too can be renewed indefinately.
Both types of order can be granted together.
The violent, abusive or threatening behavioured partner may try to convince you that your children will be taken into care if you leave. This will not happen; the Courts will not allow it. If you do not work or are on a low income, benefits will enable you to live independantly.
Helpful Phone Numbers:
Women's Aid National Domestic Violence Helpline - 0808 2000 247
Refuge - 24hr National Crisis Line - 0808 2000 247
Victim Support - 0845 3030 900
The Samaritans - 08457 909 090
National Child Protection (NSPCC) - 0800 800 500
Relate - See your Local Phone Book
Police - In an Emergency dial 999.
Staffordshire Police switchboard 101
West Midlands Police switchboard 101