The decision to separate often brings new worries

January is known to be the busiest month of the year for couples separating. Picture: Gareth Easton

The decorations have been packed away, the last mince pies digested and the fun of another festive season is fading into memory – but some are left counting the cost.

For some couples the cost is not only financial, but emotional. January is known to be the busiest month of the year for couples separating as people seek a fresh start. Various surveys have shown up to twice as many inquiries being made about starting separation proceedings than in any other month, as Christmas can be a difficult and stressful time for many.

But the decision to separate can bring new worries and concerns, and one of the most common of these is whether one person can force the other to leave a shared family home. To answer this question, we need to understand the rights of spouses and civil partners prior to divorce or dissolution and of cohabitants on separation.

Firstly let’s deal with the situation where a couple are married or in a civil partnership and the property is owned by only one of them, or a tenancy is in only one name.

The person who owns the house or holds the tenancy has the right to stay there. However, they cannot force out their spouse or civil partner. The Matrimonial Homes (Family Protection)(Scotland) Act 1981 gives such a “non-entitled” spouse or civil partner the right to occupy the family home, along with any children. Even if the house is sold to a third party, the non-entitled spouse or civil partner has the right to continue to live there.

If the spouse or civil partner who owns the property wishes to sell it, he or she will have to obtain the consent of their spouse or civil partner. If that consent is unreasonably withheld then it is necessary to apply to court for an order dispensing with their consent.

The only way in which a spouse or civil partner can remove his or her former partner from the family home is to raise a court action and seek an exclusion order. Such an order has a very high test – it is only granted if necessary for the protection of any spouse or civil partner or child of the family from the conduct, including threatened conduct, of the other party. Such orders are frequently granted in cases where there has been domestic abuse.

If both parties are joint owners or tenants then both have the right at common law to occupy the home and again neither can evict the other unless an exclusion order is obtained. If one person wishes to sell the house and the other does not, an action of division and sale needs to be raised to ask the court to order a sale. The other person can ask the court to postpone or refuse the sale. Sometimes the court will do this if the house is needed for the children of the marriage and there is no other alternative accommodation available.

The position of cohabiting couples is different. If only one person is the owner or tenant then the other is protected under provisions of the 1981 Act and cannot be locked out or forced to leave. The main difference is that the cohabitant’s right to occupy is not automatic and he or she has to have the right declared by a court. Thereafter the right to occupy only lasts for six months, although a court can extend the right of occupancy for a further six month period. Cohabitants do not however have the same protection as spouses when it comes to the sale of the house.

If both cohabitants are owners or tenants then neither can insist that the other move out, and if one wishes to sell then an action of division and sale will have to be raised.

Unlike spouses or civil partners, cohabitants do not have the same rights to ask the court to postpone or refuse a decree of sale. As with many aspects of family law, a range of different factors has to be taken into account when considering what happens to the family home after separation.

Anyone who finds themselves in this situation would be well advised to obtain legal advice.

• Nina Taylor is an associate, family law, at Lindsays www.lindsays.co.uk