Excluded occupier question re divorce

cheemulover

hi there

A friend of mine is divorcing her husband. They live in a house rent-free without a contract. The house is owned by her father. Given the husband's behaviour they would both like him out of the house but he refuses to leave.

The question I had was, does he qualify individually as an excluded occupier, and so her father could evict him fairly easily? Does anyone know if this takes precedence over any matrimonial home rights he may retain until they are divorced?

Thanks

Cat695

In my eyes this is simple

when he goes out change the locks(secure his belongings somewhere where he can get them).....she calls the police if he comes back.

If he isn't leaving the house and he's a drunk, wait till he falls asleep, carry him outside cover him and then change the locks. (option to beat him with a stick can be done at this point)

Go down the pub pay LARGE men to come and remove him (cost probably a couple of beers and a bag of salted peanuts).

Or get lots of her friends round and just make his life a misery.

But then again none of these are probably legal....sadly

Debt_Free_Chick

cheemulover wrote: »

hi there

A friend of mine is divorcing her husband. They live in a house rent-free without a contract. The house is owned by her father. Given the husband's behaviour they would both like him out of the house but he refuses to leave.

The question I had was, does he qualify individually as an excluded occupier,

I'm not sure. What's an excluded occupier?

and so her father could evict him fairly easily?

Is he named on any tenancy agreement? If so, how is the tenancy agreement structured? Is he the only tenant? or a joint tenant?

Does anyone know if this takes precedence over any matrimonial home rights he may retain until they are divorced?

Thanks

I'm not sure that there are any "matrimonial" rights in a rented property. I thought they only applied to "owned" property, albeit with a mortgage?

It might be easier if you simply state all the facts and then allow us to give you our views.

Too much of the advice in the previous post would seem to be unlawful and some might even be criminal, but it's up to you and your friend as to whether you follow any of it.

tbs624

cheemulover wrote: »

hi there

A friend of mine is divorcing her husband. They live in a house rent-free without a contract. The house is owned by her father. Given the husband's behaviour they would both like him out of the house but he refuses to leave.

If no rent is paid then yes, he will be an Excluded Occupier, as will your friend herself . The father can can simply give verbal "reasonable" notice for them to go.

cheemulover wrote: »

The question I had was, does he qualify individually as an excluded occupier, and so her father could evict him fairly easily? Does anyone know if this takes precedence over any matrimonial home rights he may retain until they are divorced?

The Family Law Act 1996 refers to matrimonial homes rights applying where one spouse has "a beneficial estate or interest or contract" -generally if a married couple are owner occupiers or are tenants they each have the same right to occupy the home as their spouse does, but given that your friend, as an excluded occupier, does not herself have a legal right to remain in her father's property, I would have thought that the matrimonial homes right doesn't apply in their case.( I may be wrong so maybe someone else can clarify) Either way, your friend & her parents should however seek their own qualified legal advice, not least because a property owner must not make threats/get physical when getting an excluded occupier to leave.They could try http://www.communitylegaladvice.org.uk/.

tbs624

Debt_Free_Chick wrote: »

.....Is he named on any tenancy agreement? If so, how is the tenancy agreement structured? Is he the only tenant? or a joint tenant?

DFC - doesn't look as though there is a tenancy agreement, see here:

cheemulover wrote: »

....They live in a house rents free without a contract. The house is owned by her father...

and they don't pay rent so there is no default AST.

Debt_Free_Chick wrote: »

I'm not sure that there are any "matrimonial" rights in a rented property. I thought they only applied to "owned" property, albeit with a mortgage?

It does apply to tenancies

Suzy_M

Is it practical for the wife to move out temporarily until the divorce is settled then move back in as sole tenant?

I'm thinking if the father who owns the property evicts both of them at the same time it may remove a lot of the bickering element.

cheemulover

Hiya - thanks for your replies. Suzy M - this is exactly the question they have been asking their lawyers. I'll try and outline the situation a little more - its a slightly crazy situation.

There has never been a contract or rent paid on the house - it was bought by her father, via a limited company, specifically for them to live in 3 or 4 years ago.

The husband moved out of the house for about 3 months when divorce proceedings started and stayed in another flat, also owned by her father (again, rent free, no contract, etc). The husband works for the family company, the UK office of which is located in this other flat. When her father tried to access this other flat (to get into the office), he found the husband had changed the locks, so he threw him out.

The husband then successfully got a court hearing to be allowed back into the house where my friend lives, despite my friend having a pending occupation order against him for domestic violence. Her husband moved back into the flat about 3 weeks ago. Needless to say this is a very stressful situation since not only are they involved in pretty unpleasant divorce proceedings but the husband is also involved in a court case with her father relating to money he has allegedly stolen from the company her father owns. Needless to say her father is not happy with him staying rent free in a house that he owns since this has come to light!

My friend wants to move out, or have her father evict her husband. Her lawyers are nervous about this because they think it will prejudice the divorce court hearing relating to the finances - i.e. she has engineered to make him homeless (I should point out that her husband is not poor and just spent over £15k on a week's holiday!)

She showed me an email from her lawyers yesterday regarding this and what they seem to be saying is that her father is perfectly entitled to remove him (and her and the children) from the flat because he is an excluded occupier, but this may prejudice the financial hearing (which is going to take a few months). Her (and her father's) choices seem to be that she moves out (probably with the kids), but her husband would still get to stay in this house for free, or have him evicted but risk the family courts ordering that he must be allowed to stay in the house until the divorce is completed/financial matters sorted.

I think I have had my original question answered by her lawyers - yes he can be evicted perfectly legally, but family courts will take a dim view of it. I don't see this as particularly fair but there you go.

kellyw8800

If they are there rent free and do not have any contract then they (both) do not have any ties to the property. I understand sometimes when theres a property involved neither wishes to walk away and lose out but this isn't the case, seems like he's staying to make her life more difficult. I would ask him nicely with father and police there, to get of the premises. Do not do anything that you may think will put them in danger sometimes its easier to walk away yourself.