Q&As

Where cohabitants have children together, and the property in which they reside is held in the sole name of one party, what action can that party take for the other party to leave the property in the absence of domestic abuse? Is the position different if the party who does not own the property is the primary carer of the children?

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Produced in partnership with Tori Adams of 4 King’s Bench Walk
Published on LexisPSL on 27/06/2019

The following Family Q&A produced in partnership with Tori Adams of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • Where cohabitants have children together, and the property in which they reside is held in the sole name of one party, what action can that party take for the other party to leave the property in the absence of domestic abuse? Is the position different if the party who does not own the property is the primary carer of the children?

Where cohabitants have children together, and the property in which they reside is held in the sole name of one party, what action can that party take for the other party to leave the property in the absence of domestic abuse? Is the position different if the party who does not own the property is the primary carer of the children?

The usual way in which one person can take action for another to leave a property in which they cohabit is to apply for an occupation order under the Family Law Act 1996 (FLA 1996). An occupation order can do a number of things, including enforcing the applicant’s entitlement to remain in occupation as against the respondent. An occupation order can be made against any associated person and there does not need to be domestic abuse in order for an application to be made. If the parties are cohabitants and have never been married, then the application would need to be made under FLA 1996, s 33. For further guidance, see Practice Note: Occupation orders.

Under FLA 1996, s 33, an application can be made if:

  1. the applicant is entitled to occupy the property

  2. the respondent is ‘associated’ (FLA 1996, s 62(3)), and

  3. the house is, has been, or has been intended to be, the home of the applicant and respondent

If the applicant is in

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