Can I Make my Ex-Partner Leave the Family Home?
If you are thinking about splitting up with your partner, husband, wife, or civil partner then one of your first questions is likely to be ‘can I make my ex-partner leave the family home whilst we sort out property ownership?’
In this article, our family law solicitors look at occupation orders and ouster orders (both types of family law injunction orders) to help answer your questions on whether you can make your ex leave the family home if you are in an unmarried relationship or if you are married or in a civil partnership.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form .
Staying in the family home if you separate
The law on whether you can stay in the family home after you separate depends on whether you are asking the court to make a short term or long term court order.
Short term orders- If you are asking the court to order that your ex leaves the family home, or asking the court for an order that you can return to the family home, then if the order being sought is short term (until property ownership is determined in a property claim if you are unmarried or in divorce financial settlement proceedings if you are married) then the law is the same whether you are married or in a civil partnership or in an unmarried relationship.
Long term orders- If you are asking the court to make a long term order to decide who gets to stay in the family home and the property ownership then the law is different depending on whether you are married or not. If you are married, the court uses family law, considers needs, and exercises its discretion when making a financial court order. If you are unmarried, the court considers property and trust law to determine property ownership and who gets to stay in the family home. If you are unmarried but you have a dependent child the law is different if you can bring a housing claim on behalf of your child under Schedule 1 of the Children Act 1989.
Whatever the status of your relationship, unless you are at risk, you should not leave the family home until you have taken legal advice from a family solicitor.
Injunction orders to stay in the family home on a temporary basis
The court can make an injunction order to enable you to stay in the family home, or return to it. An injunction application can be made whether or not you are married and whether you are male or female, in a same sex relationship, or in the UK on a visa, such as a spouse visa or partner visa.
Injunction orders over occupation of the family home are referred to as occupation orders or ouster orders. In addition to this type of injunction you may also need to apply for a non-molestation order injunction to protect you or for a child arrangement order to sort out residence and contact arrangements for your children.
What is an occupation order?
An occupation order is an order made by a family court that says you can occupy the family home. It does not affect the legal or beneficial ownership of the property and it gives you a time limited right to live at the property until a specified date or until you have reached a property agreement or divorce financial settlement.
When the court makes an occupation order in your favour you may be given sole occupation of the whole family home or the court can say that your ex-partner can continue to live at the property until property or divorce claims are resolved. The court can say that each of you can occupy specified parts of the property. This type of joint occupation may not be appropriate if there is a history of domestic violence and safety concerns.
What is an ouster order?
An ouster order is an order made by a family court that says you or your ex-partner is ousted from all or part of the family home. An ouster order does not affect the legal or beneficial ownership of the property and after the expiry of the ouster order you can return to the property. In property proceedings or in a divorce financial settlement, the family court may order that the person who was ousted from the property should have the property transferred into their sole name or the court could order a sale of the property.
Occupation orders and ouster orders and rental property
You can apply for an occupation or ouster order if you rent your family home from any type of landlord, such as a private landlord or housing association.
Who can apply for an occupation or ouster order?
You can apply for an occupation order or ouster order if you have experienced domestic violence and you fall into one of these categories:
- You own or rent the family home and the family home is, was, or was intended to be shared with your husband, wife, civil partner, unmarried partner, fiancée, family member or the parent of your child
- You have matrimonial homes rights as although you do not own or rent the family home you are married or in a civil partnership with the owner of the property and you are living in the home. Talk to our family solicitors about what matrimonial homes rights mean. Call us on 0203 959 9123 or complete our online enquiry form
- Your former husband, wife or civil partner is the owner or tenant of the property, and the home is, was, or was intended to be your shared family home
- The person you are in an unmarried relationship with or you cohabited with is the owner or tenant of the property, and the home is, was, or was intended to be your shared family home.
Applying for an occupation order or ouster order
To apply for an injunction order you will need to file an application supported by a statement of evidence. The family court will list your application for a court hearing.
If you are applying for an urgent non-molestation order to protect yourself from domestic violence, or a child arrangement order to protect your children, the court may hear your applications without giving your ex-partner notice of the hearing. The court will then list a second hearing date to decide whether to grant an occupation order. Your ex-partner will be given notice of that court hearing so they can object to the occupation order application and to the continuation of any non-molestation order or children law order.
Your family law solicitor will guide you through the injunction order application process and support you at the court hearing. If you are worried about the court application or your safety then talk to a specialist family law solicitor about the injunction application process and the help available.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form .
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