What can I do if my spouse/partner refuses to leave the family home?

Separating is difficult enough, but living with your ex-spouse during the split can really exacerbate the situation, and in some cases, be unsafe. Ideally, if both of you can agree who stays in the family home, then all to the good, but in reality, this rarely happens between warring couples. So, what happens if you can’t agree? And what can you do if your ex refuses to leave?

Legally, a spouse cannot be forced to leave the family home unless there is a risk of domestic violence if they carry on living there. In this situation, it may be possible to apply to the court for an “Occupation Order” to exclude a spouse from the property and prevent them returning.

How do I apply for an occupation order?

In order to be eligible to apply for an occupation order, you must be “associated” with the person against whom you wish the order to be made. Those who are married, civil partners, or cohabiting will be considered associated. In addition, the family home must have been used or intended to have been used as the home of you and the person you are associated with.

Usually, both parties must have a right to occupy the home, such as being either the owner or tenant, although in exceptional circumstances, it may be possible to apply for an occupation order where neither of you has the right to occupy the home.

Because removing someone from their home is viewed as such a draconian measure, strict tests must be satisfied before an occupation order is granted by the court. These tests can differ depending on what rights someone has to occupy the home; however, the court will always consider the following:

• Housing needs and resources of both parties and that of any relevant children
• Financial resources of each party
• Likely effect of any order or decision not to make an order on the health, safety, and wellbeing of the parties and of any relevant children
• The parties conduct

The court also applies another test called “the balance of harm”. If it believes that failure to grant an order is likely to result in an applicant or relevant child suffering significant harm because of the other party’s conduct, the court will make an order. Unless the following applies:

• The respondent or relevant child is likely to suffer significant harm; and
• The harm likely to be suffered is as great, or greater than, the harm to the applicant or child.

If both tests apply to the circumstances, then the order is not made. For example, if your spouse has nowhere else to live and the children were merely unhappy, it is unlikely a court would grant the occupation order.

Can I just change the locks on the family home without getting a court order?

If you own the property jointly with your spouse, you are both legally entitled to enter and occupy it. This means that you cannot change the locks, and if you do, your spouse can use “reasonable force” to enter the property.

If the property is in your sole name, you may have the right to change the locks if your spouse has already moved out. Here, your spouse would need to apply to the court and obtain an order to return to the property.

Does it matter if the property is rented/mortgaged/local authority?

If your home is owned jointly or rented in both names, then there is an equal right that both of you will be entitled to live in the home. Where the home is in one person’s sole name, the other may still be entitled to stay, even if the owner objects. Married couples or those in civil partnerships can register their Matrimonial Home Rights with the Land Registry, which protects their interest in the home until the divorce/dissolution is concluded.

For unmarried couples, where only one party owns the property or is named in the tenancy, the other may still have a right to remain in the short term, or whilst the children are young if you are their primary carer. This is a complex area of law, so it is sensible to obtain specialist advice before making the move.