What happens to family home when a relationship ends?
Our helpline advisers have been getting a lot of calls recently from people who are separating and who are concerned about their rights to remain in a home they share with a former partner. Solicitor Jill Downing looks at the protection that legislation affords to people who find themselves in these circumstances.
The Family Homes and Domestic Violence (Northern Ireland) Order 1998 allows certain people to apply for protection from domestic abuse. A person can apply for a non-molestation order to protect them from a person who has been residing in their home. The Order also allows a person to apply for an occupation order which will specify who can live in the family home. A person who breaches either of these orders can be arrested.
Who is protected by the Order?
The Family Homes and Domestic Violence (Northern Ireland) Order 1998 provides remedies to a wide range of people, including people who live together, any children who might reasonably live with these people, and other relevant children and people who are “associated”. This includes people who are married or previously married, cohabitees or former cohabitees and relatives.
The provision of non-molestation orders under Article 20 is widely used. An application for this order can be granted based on a broad spectrum of behaviour in addition to physical abuse, including verbal abuse and threats.
Any person wishing to apply for relief under this Order will need expert assistance from a family law solicitor. The Law Society of Northern Ireland hosts a directory of solicitors.
What is a non-molestation order?
A non-molestation order is a court order preventing a person from molesting an associated person or a relevant child. In this context, “molest” includes to incite, procure or assist any person to molest. In addition to preventing certain behaviours, a non-molestation order can also exclude a person from a defined area, including the area in which a dwelling is located. The order is usually made for a specified period of time. An application can be made to vary or extend an existing non-molestation order.
What is an occupation order?
A person can apply to the courts for an occupation order if a relationship has ended and the parties cannot amicably agree who should remain in occupation of the family home. The occupation order sets out who has permission to occupy a dwelling that was occupied, or was intended to be occupied, by the person making the application and the respondent.
In making an occupation order, the court can:
- enforce the applicant’s entitlement to remain in occupation;
- require the other party to permit the applicant to enter the dwelling house;
- require the other party to permit the applicant to have peaceful use and enjoyment of the dwelling house;
- regulate the occupation of the dwelling house by either or both parties.
In making an occupation order, the court can also:
- require the other party to leave the dwelling house;
- exclude them from a defined area in which the dwelling house is included, any other defined area.
- restrain the other party from disposing of any estate he has in the dwelling house by way of transferring it to a third party.
When making an occupation order, the court must have regard to certain factors, including the housing needs and housing resources of each of the parties and of any relevant child; the financial resources of each of the parties and the likely effect of any order, or of any decision by the court not to exercise its powers on the health, safety or well being of the parties and of any relevant child; and the conduct of the parties in relation to each other.
What happens if a person isn’t the legal owner or tenant of a property?
It is possible for a person to apply for relief under this order even if they have no legal or beneficial interest in the property subject to the dispute. Article 4 grants “home rights” to a spouse or civil partner (A) whose partner (B) is entitled to occupy a dwelling house by virtue of a beneficial estate or contract even if A has no such entitlement.
A person who is a cohabitee of the legal owner or tenant, as opposed to a spouse or civil partner, can also apply for an occupation order. When considering an application for an occupation order from a person who does not have a legal or beneficial interest in property and who cannot be considered to have home rights under the Order, the court must consider the length of time the parties lived together and the nature of the relationship in addition to the factors outlined above which will impact on an application for an occupation order.
Imposing repairing and other obligations
Article 18 of the Order provides that the court may impose obligations relating to repairs, payment of rent or mortgage and other outgoings, use and protection of furniture and other items within the dwelling and rectification of damage on a party after an occupation order has been granted.
These provisions are not widely used. However, a recent enquiry to Housing Rights was from a wife in respect of a private tenancy for which the husband had paid the deposit. The relationship was now ending and the husband was requesting that the deposit be returned to him. In this case, the wife was unable to gather up a new deposit and was concerned that her husband’s actions could lead to her being evicted. Although a simpler solution was found in this case, It is contended an application could be brought under this provision and the court would consider the financial needs and resources of each party and the financial obligations each party has to each other and to the children from the relationship, who would continue to reside in the tenancy with their mother.
Requirement to notify respondent
Article 23 of the Order gives the court power to make an occupation order or a non-molestation order without giving notice to the respondent if it considers “it is just and convenient to do so”. This will require consideration of all the circumstances including any risk of significant harm to the applicant or a relevant child, attributable to the conduct of the respondent if the order is not made.
Breach of order
Under Article 25 of the Order a person who contravenes a non-molestation order or an occupation order shall be guilty of an offence. The Police have power of arrest without a warrant for an allegation under Article 25.
Transfer of tenancy
Non-molestation and occupation orders are generally time-limited. The Order also includes provisions for the court to assign a tenancy in certain cases. A person who is living in a property that is subject to a secure social tenancy or to a private tenancy that is protected under the Rent Order 1978 may apply to have the tenancy assigned into their sole name, but should seek specialist legal assistance with this process from a qualified family law practitioner. Any order transferring a tenancy, may also include direction that one party pay to the other certain sums in compensation.
Further advice and assistance
Clients who wish to take action under the Family Homes and Domestic Violence (NI) Order 1998 will need the assistance of a competent solicitor. Visit the Law Society’s website for a list of practices.
People who require assistance or advice on dealing with the end of a relationship or who is experiencing domestic abuse from a partner or family member should contact
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