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If you are going through a divorce, it can be tempting to take strong action such as changing the locks on your home to prevent your spouse from accessing the property.
However, you should exercise caution. Your partner will normally have a right to enter or stay in the family home if:
- You are married or in a civil partnership
- They are a joint owner of the property
- They are named on a tenancy agreement
It is good practice for the party who has left the property to let the resident partner know when they propose to visit.
If the person living in the property feels threatened, or there is a history of domestic abuse, it may be possible to legally prevent the other party from accessing the property. An occupation order outlines who can live in/enter the family home and help to protect one party against harm. In this scenario, an ex trying to access the property could be breaking the law.
It is also a criminal offence for someone to threaten or use violence to enter a property if there is someone inside the house that objects to them entering and the person trying to gain entry knows that they object. The fact that your spouse may have the right to occupy the property is not always sufficient authority in itself for them to enter.
If your partner has changed the locks, and you have the right to enter, you will not be prosecuted for criminal damage if you ‘break in’ to gain access. However, you should seek legal advice before doing so, as there is a greater likelihood of police involvement for a breach of the peace.
What if the property is owned in joint names?
If you jointly own your home with your partner, both of you are entitled to enter or occupy the property, unless there is some sort of restrictive court order in place (see above). This is true even if the other party has moved out of your home.
If you change the locks, the other party could simply have the locks changed again to gain access.
If you believe you or your children are at risk then it may be possible to obtain an Occupation Order from the Court to restrict the other party’s access. The threshold for obtaining such an Order is quite high, and so you may have difficulty in proving that you or your children are at significant risk of harm.
What if the property is owned solely in my name?
If you own the property in your sole name, you may have a right to prevent the other party gaining access by changing the locks.
Bear in mind, however, that your spouse/partner may still have a legal right to occupy the property and they can apply for an Occupation Order to formally obtain that right. In order to do this, the other party would need to prove they are an ‘associated person’, which means:
- You have been married or civil partners
- You are cohabitants
- You are former cohabitants
- You are relatives
- You have agreed to marry each other
Just because the property is in your sole name doesn’t necessarily mean the other party has no rights to live there (as long as they are an associated person).
However, if the other party moves out of the property they must gain the approval of the Court to return. In this scenario, you can change the locks without the consent of the other party. However, you should take legal advice before making this decision.
Can my ex break in?
Under certain circumstances as detailed above, your ex can ‘break in’ to your home.
Someone who jointly owns a property is allowed to use ‘reasonable force’ to enter a property that they have been excluded from. If the locks have been changed, they can ask a locksmith to change the locks again to gain access.
Note that under the Criminal Law Act 1977, it is an offence for you to use or threaten violence to enter a property if the other party is opposed to your entry (and you know they don’t want you to enter). In this scenario, violence can apply to a person or the property. In short, the legal right to enter or occupy a property is not sufficient authority in itself for entry under any circumstances.
If you have changed the locks, your partner could apply to the courts to enforce their right to enter or occupy the property. You could therefore have to go to Court to argue against such an application.
In many cases, it can be more sensible and practical to agree who will remain in the property and how visits to the property will be arranged, perhaps through discussion via solicitors or mediation.
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The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.