Bringing family law issues into view
The Barbie movie, which has achieved huge box office success since opening in cinemas, explores the challenges women face in the real world and brings various issues of family law to the surface.
In the film, when Barbie left to visit the real world, Ken took over the fictional 'Barbieland' and turned it into his own idealised version of society, known as 'Kendom'. As part of this, he took over the Barbie dream house – where Barbie had lived – and changed the locks, making it his own house.
If this happened in the real world, what could Barbie do? Could she use legal routes to reclaim her property and move back into her dream house?
In this piece, we consider the respective rights that cohabiting and married couples have to regain access to their homes.
What rights do cohabiting couples have?
In the real world, there is an increase in couples who choose to live together without marriage or entering into a civil partnership.
If Barbie and Ken were living together in the Barbie dream house, as boyfriend and girlfriend, and the house was owned by them jointly or under a joint tenancy agreement, Ken would not be entitled to change the locks to exclude Barbie from the property.
If the property was legally in Ken's name, and Barbie had been living there with him in the dream house, Barbie could make an application to the court for an Occupation order under section 36 of the Family Law Act 1996.
The court would look at the harm that would be caused to either Barbie or Ken as a result of the order being made. The question would be:
- whether Barbie is likely to suffer significant harm attributable to conduct of Ken if the order is not made; and
- whether the harm likely to be suffered by Ken if the order is made is as great as or greater than the harm attributable to conduct Ken which is likely to be suffered by Barbie if the order is not made.
If the court found that Barbie would suffer significant harm that is greater than any harm Ken would suffer, it would consider making the Occupation order. The court would have general discretion and in considering whether an order is appropriate would look at all the circumstances including the parties' respective financial resources, housing needs, conduct of each party to each other and the impact the order would have. The nature and length of the relationship would also be relevant.
The order can last up to six months and can be renewed once in the case of cohabiting couples (and can be for a specific period in the case of married couples).
The court may apply the power of arrest to the Occupation order pursuant to section 47 of the Family Law Act 1996 if there is a threat of violence.
Occupation orders are not straightforward to obtain, and it is important to take legal advice as to the merits of the case before an application is made.
What rights do married individuals have?
If Barbie and Ken were married, even if the house title or tenancy was in Ken's name, Barbie would have a legal right to go back into the house; she automatically has "Home Rights".
Home Rights are available to any spouse when the property has been occupied as the matrimonial home. Home Rights do not apply to cohabiting couples so this would be an additional right available as a result of being married.
Barbie would have the following rights:
- A right not to be evicted or excluded from the property, except with the leave of the court.
- A right, if not in occupation, to enter into and occupy the property.
- A right to be given notice of any mortgage possession proceedings and, with leave of the court, to take part in those proceedings.
- The right to have any mortgage or rent payments made by her treated as if those payments were made by the owning or tenant spouse.
Barbie could register her Home Rights on the title of the property with the land registry. The Home Rights act as a charge on the estate that will bind any third party who acquires the land.
A spouse who has registered Home Rights but is not in occupation of the property requires the court's permission to move back into the property (section 30(2)(b), Family Law Act 1996).
The Home Rights would come to an end on divorce, death or an order of the court.
Any person who is not a legal owner or tenant at the property they have been living in with their partner should take legal advice as to how they can secure their living situation, even if only on a short-term basis.