Cohabitants or former cohabitants may potentially have the following claims against their partners or former partners:
1. Claims under the Trust of Land and Appointment of Trustees (TOLATA) Act 1996
2. Claims under Schedule 1 of the Children Act 1989
3. Claims under Part IV of the Family Law Act 1996
Excluded tenancies
Usually, landlords wanting to evict an occupier of their property are required to obtain a court order granting them possession of the property. However, certain categories of occupation are excluded from this requirement, so the landlord need not apply to court and may just ask the occupier to leave. These categories are contained in the 1977 Act, and are referred to as ‘excluded tenancies’. They are essentially:
– Occupiers who share accommodation with a resident landlord or a member of the landlord’s family, provided that it is the landlord’s only or principal home. ‘Accommodation’ does not include storage areas, staircases, passages or other means of access.
– Where occupation has been granted on a temporary basis. This might include rights of occupation granted to licences or tenancies granted to people occupying a property for the purposes of a holiday.
– Where occupation is not granted for money or money’s worth.
Although it is not necessary for the landlord to contain a court order to evict an occupier who falls in one of the excluded categories, he must still be given reasonable notice that the landlord wishes him to leave.
Occupation Order
If you have the right to occupy the property by virtue of a legal or beneficial interest in that property, then an application can be made under s 33 of the 1996 Act. Many cohabitants will fall into this category. S 33 (6) provides that in deciding whether to make any orders the court shall have regard to:
a) The housing needs and housing resources of each of the parties and of any relevant child
b) The financial resources of each of the parties
c) The likely effect of any order, or of any decision by the court not to exercise its powers under s 33 (3) on the health, safety, or well-being of the parties and of any relevant child
d) The conduct of the parties in relation to each other and otherwise: s 333 (6) (a)(b)(c) and (d).
In accordance with s 33 (7) the court must make an order if it appears that the applicant or any relevant child is likely to suffer significant harm attributable to conduct of the respondent if an order is not made (exceptions apply).
If you have no right to occupy the property but are a cohabitant or former cohabitant of your partner or former partner, who does have a right to occupy, then an application may
be made under s 36 of the 1996 Act.
In addition to the matters referred to above, the remedies under s 36 are discretionary, and the court will take account of a wider range of factors, including
a) the nature of the relationship and in particular the level of commitment involved in it;
b) the length of time the parties have cohabited;
c) whether there are or have been any children who are children of both parties or for whom the parties have or have had parental responsibility;
d) the length of time that has elapsed since the parties ceased to live together;
e) the existence of any pending proceedings for an order for financial relief against parents under Schedule 1 of the Children Act 1989, or proceedings relating to the legal or beneficial ownership of the dwelling house.
The Court is in effect being asked to make a value judgment on the nature of the relationship and to take these factors into account in deciding whether to grant relief.
An order under s 33 may run for a specified period, until the occurrence of a specified event or until a further order, s 33(10) of the Family Law Act 1996. However, an occupation order under s 36 should not exceed six months duration, although it can be extended on one occasion for a further specified period not exceeding six months, see s 36 (10).
We issued divorce proceedings in England on behalf of Mrs F whilst negotiating with the husband and his solicitors at the same time. The parties reconciled, however, Mrs F did not withdraw her petition. She secured the jurisdiction of England and Wales and can later on proceed with her petition should she so wish.
