This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Non-owning cohabitant

This content applies to England & Wales

When a non-owning cohabitant or former cohabitant who does not have a beneficial interest may apply for an occupation order.

Where the other cohabitant or former cohabitant is the sole owner, the non-owning cohabitant or former cohabitant who does not have a beneficial interest may apply for an occupation order as a non-entitled applicant.[1] Orders may only be made in respect of a property that the applicant and the former cohabitant live(d) together in or intended to live together in.[2]

Non-owning cohabitants and former cohabitants without a beneficial interest do not have a right to occupy unless they are successful in obtaining an occupation order. A non-owning cohabitant can also apply for an occupation order as a non-entitled applicant where a beneficial interest probably exists but has not yet been established. This will not prevent her/him from applying subsequently for an occupation order as an entitled applicant with an established beneficial interest,[3] and this may be appropriate where a longer term order is sought.

Duration of orders

Orders can be made for a maximum of six months initially, and the court may extend the order once only for a period of not more than six months.[4]

Declaratory provisions

If an order is made, it must contain one of the following declaratory provisions:

  • that the applicant has the right not to be evicted or excluded from the home or any part of it for the duration of the order, and the other cohabitant or former cohabitant is prohibited from evicting or excluding the applicant,[5] or
  • if the applicant is not in occupation, the right to enter and remain in occupation for the duration of the order and requiring the other cohabitant or former cohabitant to allow this.[6]

Regulatory provisions

In addition, the court may attach further regulatory provisions:

  • to regulate the occupation of the dwelling by either or both of the parties[7]
  • to exclude the other partner from all or part of the home[8]
  • to prohibit, suspend or restrict the other person's rights to occupy (the court has no power to completely terminate these rights, only to suspend them)[9]
  • to exclude the other party from a defined area around the home, for example the particular estate or the cul-de-sac where the property is situated.[10]

Other provisions the court can attach

When the court makes an occupation order, it may include certain provisions in addition to declaring/regulating who can live in the home and/or who is excluded from it. It can:

  • impose obligations on either cohabitant to repair or maintain the home or to take responsibility for the mortgage and other outgoings. This could temporarily end the sole owner's liability for rent and order that the non-owner cohabitant or former cohabitant take on that liability.[11] The liability ceases when the occupation order ends[12]
  • oblige the cohabitant or former cohabitant who remains in occupation to make payments to the other partner who has been excluded from all or part of the home.[13] This is sometimes known as an occupation rent and is intended as a compensation for the loss of the right to occupy[14]
  • make orders granting use of furniture and contents, and orders to take reasonable care of furniture, contents and the home generally.[15]

Circumstances in which an occupation order can be granted

The court has the power to grant an order where it considers it just and reasonable to do so, but it must consider specific criteria when reaching its decision. It must have regard to all the circumstances of the case, including:

  • the housing needs and housing resources of each of the parties and any relevant child. Housing resources are likely to include whether either party would qualify for rehousing under homelessness or allocations legislation (see the Allocation of LA housing section and the Homelessness section for more details). A 'relevant child' is defined as a child who lives with or could be expected to live with either party, a child subject to an order under the Adoption Act 1976 or the Children Act 1989 that is in question in the occupation order proceedings, or any other child whose interests the court considers to be relevant
  • the financial resources of each party
  • the likely effect of any order, or the effect of not making an order, on the health, safety or wellbeing of the parties and of any relevant child
  • the conduct of the parties.[16]

When deciding whether to make a declaratory order, the court must also consider:

  • the nature of the parties' relationship (the court must have regard to the fact that the couple had not demonstrated the commitment involved in marriage)[17]
  • the length of time during which they lived together as husband and wife
  • whether there are any children of both parties or for whom both parties have parental responsibility
  • the length of time since the parties ceased to live together
  • any other proceedings pending under the Children Act or relating to beneficial interests.[18]

For regulatory orders, the court must consider the matter separately and consider only the first four matters listed above (all the circumstances including housing needs and resources, financial resources, the likely effect of an order on the health, safety or wellbeing of all parties and the conduct of the parties).[19] The court must also look at the balance of harm. This means that it must consider the likelihood of significant harm to either party and any relevant child if an order is made, balanced against the likelihood of significant harm if an order is not made.[20]

[1] s.36(1) Family Law Act 1996.

[2] s.36(1)(c) Family Law Act 1996.

[3] s.36(12) Family Law Act 1996.

[4] s.36(10) Family Law Act 1996.

[5] s.36(3) Family Law Act 1996.

[6] s.36(4) Family Law Act 1996.

[7] s.36(5)(a) Family Law Act 1996.

[8] s.36(5)(c) Family Law Act 1996.

[9] s.36(5)(b) Family Law Act 1996.

[10] s.36(5)(d) Family Law Act 1996.

[11] s.40(1)(a) Family Law Act 1996.

[12] s.40(3) Family Law Act 1996.

[13] s.40(1)(b) Family Law Act 1996.

[14] s.40(1)(b) Family Law Act 1996.

[15] s.40(1)(c)-(e) Family Law Act 1996.

[16] s.36(6)(a)-(d) Family Law Act 1996.

[17] s.41 Family Law Act 1996.

[18] s.36(6)(e)-(i) Family Law Act 1996.

[19] s.36(6)(a)-(d) Family Law Act 1996.

[20] s.36(8) Family Law Act 1996.

Back to top