This is a question that is frequently asked of divorce solicitors, usually by the person who has remained living in what was the family home.
The two most common situations when this is asked is where:
- The property is jointly owned
- The property is in one person’s sole name
The property is jointly owned
If the property is jointly owned then the other person has a right of occupation as a result of their joint ownership.
This right of occupation continues even if that person moves out of the family home. Neither party has the right to lock the other person out.
Therefore, no, you should not change the locks without the other owner’s consent or if you do a key should be provided to the other party.
The property is owned solely in my name
If the property is owned solely in one persons name but has been the family home then the other person has a right not to be evicted or excluded as a result of their marriage.
In the event that they move out of the property then they must seek permission of the court before they are entitled to return. In these circumstances (where the other party has moved out and the property is owned in your sole name) you are legally able to change the locks without the need for your partner’s consent but you should consider whether it is wise to do so by taking legal advice beforehand.
What if there is domestic violence or threatening behaviour?
In circumstances where one person is subject to domestic violence or threatening behaviour by another person who has a right to live in the same property, then there is often the option to apply for an occupation order.
An occupation order is an injunction which effectively removes a person’s right to be able to live in a property.
When deciding whether or not to make an occupation order the court will take into account various factors which will include balancing the harm that each party will suffer if an order is, or is not, made.
In most cases it is preferable to try to resolve these issues without the need for court proceedings. Often one party needs to go to the property to collect their belongings for example and in this scenario arrangements should be made to enable that to happen.
Couples who find themselves in this situation should consider the options of Mediation, Collaborative Practice or Arbitration as a way to resolve and deal with the other, probably longer term, issues.
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