Ending relationships and housing
Jersey Law does not have common law marriages and any couple who stop living together are viewed in the same way as any two people deciding not to live together such as friends.
It is possible for married couples to remain in the same property while separated but the parties have to lead completely separate lives, separate shopping, washing, cooking, cleaning and sharing expenses. Legal advice is essential if they wish to subsequently divorce on the grounds of separation.
What housing qualifications each person has will affect what sort of accommodation they are able to live in and where there are children involved.
Only Licensed or Entitled parties may remain living in Entitled rental accommodation.
The person who signed the tenancy agreement has the right to remain in the accommodation if it is in their sole name and can ask the other person to leave. If the other person refuses to leave, the named tenant would be free to move their belongings out and can ask for help from the Police where necessary, e.g., if there was a history of violence.
If the person who has signed the lease decides to leave the accommodation, the partner has no right to stay, and the landlord would be able ask them to vacate.
If the couple are joint tenants, they have both signed the rental agreement and they both have equal rights to stay in the home. The general rule is that neither partner can ask the other one to leave unless there is police involvement, e.g., in cases of abuse. Any permanent solution has to be by agreement with all parties, including the landlord.
If there has been abuse towards one of the parties, they may apply to the court for an injunction, requiring the abusive partner to stay away from the home. See injunctions.
The landlord should be notified in writing of the proposed departure of one of the tenants. The landlord should be asked to issue a new sole lease.
Affordable Housing providers in Jersey will consider changing any tenancy on a case by case basis, taking into account the clients’ needs as well as the criteria set out by The Affordable Housing Gateway.
If one person is the sole owner, that person has an absolute right to remain in the home and the other partner must leave if the owner so wishes.
To make sure one partner does not sell the property before their partner has had the opportunity to apply for a transfer, an injunction may be applied for if there are grounds to suspect this may happen and legal advice must be obtained. It is also possible to injunct any proceeds of the sale as part of the matrimonial assets.
If both partners are joint owners, each have equal rights to stay provided they have Entitled or Licenced status in their own right. If a spouse without the required status wishes to remain, they should seek permission from the Population Office.
If neither spouse is Entitled and only one has Licensed status, only that spouse may live in the property.
If they own the property as joint owners, it can only be sold if both parties are in agreement. A sale can be forced by one party so it would be important to seek legal advice. See also Joint Ownership of Property.
In the case of married couples, the circumstances of the married couple would be taken into account in any settlement for separation or divorce, including whether there are any children, length of marriage and who is making financial contributions to the family. Where there are children, it is normal for the children and a carer to remain in the family home at least until interim arrangements have been made.
The spouse staying in the home should continue paying the mortgage. They can apply to the Court for an interim order whilst divorce proceedings are underway to provide for the payment of the mortgage and rates etc. to keep the family in the home.
It is possible for one party in a separation to force the sale of a jointly owned property. This is called ‘licitation’.
The court may decide that the home shall not be sold for a specified period while the partner and children live there, usually until the youngest child reaches school leaving age or finishes full-time education. The period specified might also be until the the remaining spouse co-habits, re-marries, sells the property or dies. They may wish at a later stage to buy out the other spouse’s share of the home, but could only do this with his agreement.
If the spouse remaining is paying off the mortgage on the house, they will be contributing to the value of the other spouse’s eventual share of the proceeds of sale. If, however, there is no mortgage to be paid off, they will effectively be living in the house at the other spouse’s expense. The court therefore may make an order requiring rent from the time that the children cease to need the house as a home.
Owners in common
One party may transfer ownership of their share of the property without the other party’s agreement.
As licenses only apply to the individual licenced person, the partner of the licenced person who cohabits is in a very vulnerable position if the relationship fails unless they have Entitled Status in their own right. Legally, the partner shares the accommodation as a lodger of the licenced person and has no right to occupy the accommodation if the licenced person is no longer resident. If the partner chooses or is requested to leave, they will have to look for alternative accommodation depending on their housing status.
Types of Order regarding matrimonial home
Mesher Order – If this is granted, then the Court can order that the sale of the property can be deferred for a certain period of time, for instance until the children are no longer dependent.
Martin Order – This order is for the outright transfer of the property to one spouse.