| Ending relationships and housing ( 8.28.10. ) |
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| Sunday, 08 April 2007 | |
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2007-06-08
LOCAL INFORMATION 8.28.10 Extent:Jersey General points to consider 1. As there is no recognition in Jersey Law of the 'common law' status, any couple ending a cohabitation are viewed in the same way as any two people for example, of the same sex, ceasing to live together. 2. The housing qualifications status of the persons involved will affect what sort of accommodation they are able to move into, and where there are children involved, this can present serious difficulties for a mother without qualifications. Staying in the home 3. The client may wish to end the relationship but stay in the home with her/his partner moving out. Whether or not the client can do this depends on any tenancy agreement, housing qualifications or home ownership, and financial circumstances. Where the client or partner is sole tenant 4. The sole tenant has the right to remain in the accommodation, and can ask the cohabiter to leave. If the cohabiter refused to leave, the tenant would be entitled to move her or his possessions out (with due care to avoid damage), and might consider seeking assistance from the Police, particularly if there was a history of violence. The sole tenant might find her/his entitlement to Income Support Benefit affected when a cohabiter moves out if the accommodation is then considered too large for the remaining occupant(s). 5. If the sole tenant decides to leave the accommodation, then the partner has no right to remain, and the landlord would be able to evict her/him. However, if the partner of the tenant has housing qualifications, or if the accommodation is 'lodgings', it may be possible to persuade the landlord to pass the tenancy to the remaining partner. There is no obligation on the landlord to take the remaining partner as a tenant, and if the partner did not have housing qualifications, it may be unlawful for her/him to stay in the accommodation. Where the partners are joint tenants 6. If the couple are joint tenants, they both have equal rights to occupy the home. The general rule is that neither partner can get the other one out unless there has been violence. Any permanent solution has to be by agreement with all parties, including the landlord. 7. If there has been violence towards one of the parties, s/he may apply to the court for an injunction requiring the violent partner to stay away from the home, but see 4.5.1.L6 for the usefulness of this. 8. Where joint tenants hold a lease, the landlord should be notified in writing of the proposed departure of one of the tenants and her/his relinquishment of her/his tenancy. The landlord should be asked to issue a new lease (for which document the tenant will have to pay) in sole name, or as a new joint tenancy with a new partner, as appropriate. States housing 9. The States of Jersey Housing Department will change a joint tenancy to a sole tenancy for the mother when there has been a break-up of the relationship. This will involve the departing partner signing a form to surrender the joint tenancy. This can be waived in cases where the partner has left the island. Where the client or partner is sole owner 10. If the client or partner 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. The partner is entitled to a reasonable period of notice, particularly when it is a mother with children involved. Where the couple are 'joint owners' 11. If both partners are joint owners of the property they each have equal rights to stay in the property provided they have housing qualifications in their own right. If they own the property as joint owners, it can only be sold if both parties are in agreement with each party receiving a share of the proceeds. However, a sale can be 'forced' by one party, so it would be important for clients who are joint owners of property and thinking of parting to seek legal advice. See also 11.1.54 Joint Ownership of Property. Also see 11.8.36.L1 para 5 regarding Share Transfer Property. Where the couple are 'owners in common' 12. If the partners are 'owners in common', then one party may transfer ownership of her/his share of the property without the other party's agreement. If one party wishes to stay in the property and has housing qualifications in their own right, a proper agreement would have to be written providing for rent to be paid for the owner moving out, for example, or for some form of payments to be made to compensate the partner moving out, in effect a 'buy-out'. A valuation of the property would be necessary, and legal advice should be recommended. See also 11.1.54 Joint ownership of property. 'J' Category - cohabitation 13. As 'J' Category Housing Licences only apply to the individual licensee, the partner of the licensee who cohabits is in a very vulnerable position if the relationship fails unless s/he has housing qualifications in her/his own right. Legally the partner shares the accommodation as a 'lodger' of the licensee and has no right to occupy the accommodation if the licensee is no longer resident. If the partner chooses or is requested to leave, s/he will have to look for alternative accommodation depending on her/his qualifications (usual housing qualifications periods would apply, ie eleven years residence]. Leaving home 14. If the client decides to leave home, s/he needs to consider whether s/he is leaving for good or temporarily, in the hope of getting back into the home in the long term. Immediate solutions 15. If the client wishes to leave the home these are some of the options available:
Long term solutions 16. In the long term the client needs to decide whether s/he wishes to return to the home or find permanent alternative accommodation. The main options are:
ENDING A MARRIAGE General points to consider NB: If there has been violence, the housing rights of the violent person may be temporarily set aside by the court if an injunction is granted. The client may be allowed to remain in the home and the violent spouse excluded to provide immediate protection. See 4.5.1.L6 Injunctions. 17. There is no equivalent in Jersey of the UK Matrimonial Homes Act 1983, which gives a married couple equal rights to live in the matrimonial home. However, in Jersey customary law would protect a partner who was being unreasonably evicted from the home. 18. Where there has been violence, adultery, drunkenness or other unreasonable behaviour, the Court has powers to require the offending spouse to leave the matrimonial home through the Separation and Maintenance Orders (Jersey) Law 1953 as amended. See 8.27.10.L1 Maintenance and separation, for how to obtain an order. 19. Before making a decision about housing, a client who wishes to separate or divorce should consider the following:
20. If the marriage has ended, the client will probably be applying for divorce or judicial separation. When granting either of these, the court also has to make decisions about property, money and children. The court has to consider the implications of any decisions and the needs of any children of the marriage. The court also must take into account all the circumstances of the case including, for example, the income and needs of both partners and the contribution they have made to the welfare of the family. The court cannot decide what should happen to the matrimonial home in isolation. The court must consider who is likely to have custody of any children, and the financial position and housing alternatives for each partner. 21. The type of order the court will make depends on whether the home is rented or owned. If the home is rented, decisions about who lives there will have less effect on the other financial arrangements that are made. A home that is owned is much more central to the arrangements of the divorce. Staying in the home 22(a). A partner may wish to end the marriage but remain in the home alone. In Jersey neither party has an unalienable right to stay in the marital home, and factors such as who owns the home, or is the tenant, and housing qualifications also must be considered. 22 (b) The non-residentially qualified spouse of a locally residentially qualified person, can join in the purchase of a freehold property with their spouse under Regulation 1 (1) (n) (ii). In the event that the marriage should subsequently break down, whilst the couple are still married, ownership of the property can be transferred into the sole name of the non-residentailly qualified spouse under Regulation 1 (1) (n) (i). Whilst he or she will be able to continue in occupation of said property, they would obviously not be residentially qualified to lease or purchase alternative property in the island unless able to qualify under the Regulations. If the couple divorce when ownership of the property was still in joint names, it would not be possible to transfer ownership as outlined above. Individuals with 1 (1) (J) category consents, married, who have purchased freehold property through a company. 22(c) Occupation of the said property, irrespective of whether the shares in the company are jointly owned by husband and wife, is strictly for the duration of the approved essential employee's full time employment, in the agreed role, with the agreed employer and for the stipulated period. It is not possible, in the event of a relationship breakdown, for the non-residentially qualified spouse, be that the husband or the wife, to remain in sole occupation of the property, or for the ownership of said property to be transferred into their sole name under Regulation 1 (1) (n). A purchase by an approved essential employee though the medium of a company is different to one in respect of a locally qualified couple and occupation can only be by the approved essential employee. 23. In the short term the only way to resolve decisions about who should stay in the home is for the couple to discuss the situation and come to a reasonable agreement, but this may not be simple. A counselling organisation such as Relate may be able to conciliate with any problems, and the partners' legal representatives may negotiate a solution where a couple can't communicate. 24. Where there has been violence, adultery or cruelty and a woman cannot persuade her husband to leave she can apply to the Court for an order to prevent him from being in the home, see 8.27.10.L1 Maintenance and Separation, or 4.5.1.L6 Injunctions. Leaving the home 25. A client who wants to leave has to think of what options are available to her/him which would be appropriate and practical:
26. A partner who leaves the marital home without the agreement of the other partner could be deemed to have 'deserted' the marriage, which is still a ground for divorce in Jersey, although this can be safeguarded by speaking to her/his legal representative before making the move., and this should always be recommended. 27. It is advisable to plan what s/he is going to take with her/him depending on the type of accommodation s/he is going to occupy and what arrangements can be agreed for dividing the possessions. Problems of access to the previous marital home can be sorted out by legal means if there are problems. Rights to rented accommodation Private rental, sole tenancy 28. If the sole tenant is the partner who is planning to leave the marital home, it may be possible to have the tenancy transferred into the name of the remaining partner. This will be up to the landlord's agreement and depends on the person's housing qualifications, there is no automatic right that allows the remaining partner to stay. 29. If the sole tenant wishes to stay in the marital home, this should not affect the tenancy. 30. Where the wife is the sole tenant, and the husband is unwilling to leave, the wife may get a court order for the husband to leave the matrimonial home, under the provisions of the Separation and maintenance (orders) Jersey Law 1953, providing certain grounds exist. See 8.27.10.L1 for details of how to get a court order. This may equally apply where the husband is sole tenant. Private rental - joint tenancies 31. Joint tenants are equally liable for all the rent, and where one tenant has moved out, the remaining tenant will be responsible for paying all the rent. In most cases a tenancy can be changed from joint names to a sole tenancy without any problem. However, if a new lease has to be drawn up then the cost of this must be born by the tenant. 32. Where one joint tenant is unwilling to assign her/his portion of the lease to the tenant wishing to remain, the Separation and Maintenance Orders (Jersey) Law 1953 can provide for the joint tenancy to be assigned to the husband or the wife as long as certain grounds are present, for example desertion, cruelty or adultery. This, of course, would depend on Housing qualification restrictions, as usual. See 8.27.10.L1 for details of how to get a Court Order. States housing - tenancy in one name only 33. Where the tenancy is in the husband's name alone, and he has moved, or is planning to move out, then the Housing Department will consider transferring the tenancy into the wife's name. However, as tenancies are usually in joint names, this could imply that the wife does not have housing qualifications and would not be given the tenancy in her own name. The Housing Department could be contacted to ascertain whether this is the situation. The Housing Law changed in October 1995, this will give more spouses qualifications than previously, the length of time that the couple have been married and living together will determine whether the spouse has qualifications - ten years is the requirement. 34. Where the tenancy is in the wife's name alone, and she has left the marital home, it would be at the discretion of the Housing Department whether they passed the tenancy to the husband remaining in the accommodation, depending on the circumstances. For example, if he had been left to look after the children, he would retain the accommodation as the family home. States housing - joint tenancy 35. In most cases, tenancies are in joint names, and when one of the parties moves out of the marital home, the tenancy must be assigned to the remaining partner. However, the Housing Department would not agree to the husband occupying the accommodation alone unless he had a child/ren of the family living with him. 36. The Housing Department will require the departing tenant to sign papers to assign the tenancy to the remaining partner. If s/he is unwilling to do this, it is possible to get this done by legal means with the assistance of a legal adviser during proceedings for separation or divorce. Under the Separation and Maintenance Orders (Jersey) Law 1953, the Court can order a joint tenancy to be assigned to the wife, where appropriate, see 8.27.10.L1 Rights to owner occupied accommodation 37. In Jersey there is no automatic right for the sole owner of a property to remain in it after the break up of a marriage. The circumstances of the 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, most usually the mother, to remain in the family home after the breakdown of the marriage, at least until interim arrangements have been made. 38. In some cases, the wife may prefer to leave the home, particularly where there has been violence, but she should not do this without taking legal advice first, as her departure could be regarded as desertion in Jersey law. 39. If the woman is staying in the home she should continue paying the mortgage. She 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. 40. If a wife is a joint or sole owner of the home, her right of occupation is secure. If the husband is the sole owner the wife will have rights to live in the home during the marriage and as part of divorce proceedings may apply for a transfer of the property into her name. To make sure one partner does not sell the property before her/his 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'. 41. There are three kinds of order that the divorce court can make. The couple can agree to one of these without going to court, or simply go to Court for their agreement to be confirmed:-
NB: It is possible for one party to a separation to force the sale of a jointly owned property. This is called 'licitation'. For more information on this, see 11.1.54 Jointly ownership of property. 42. In the early stages of the marriage, particularly if there are no children, the court may look mainly at the financial contributions of both partners and decide that the person who put the most in should have the most out. But the longer the marriage has gone on, and especially if there are children, the less the court is interested in who put in what in money terms, and the more it considers the needs of partners and any children. It will also consider factors such as earning capacity and opportunities for finding alternative accommodation. NB: It is important that the client receives legal advice on what the court can do and how it decides what to do so that she can choose the best arrangement. 43. The woman needs to decide whether she wants to remain in the home. She needs to work out whether she can afford the mortgage repayments, rent, repairs and general upkeep. She should take into account her total potential income including, for example, maintenance and Income Support Benefit. She can also:-
Selling the home and sharing the proceeds 44. If there are children it is unlikely that the Court would order a sale unless selling the home would bring in enough money to buy another house for the parent who is going to have the children to live there with them. The house, however, would have to be sold if a wife could not keep up the mortgage repayments with whatever assistance by way of maintenance the husband could pay. 45. If there are no children the court will decide how the proceeds of the house are to be divided by taking in to account direct financial contributions by each partner towards the purchase (payment of part of the deposit or part of the mortgage repayments) or improvement of the house, and also the indirect financial contribution where, for example, the wife has worked for part of the marriage and has use her earnings to pay some of the household bills, food, clothing, or has paid her earnings into the couple 's joint bank account. The court will also take into account the length of the marriage (see para 41). If the marriage has lasted for some time and the wife has made mainly indirect financial contributions, the courts may use the principle that she should receive one third of the value as a starting point for calculating her share. 46. If a woman's share would be insufficient to enable her to buy a new home, particularly if her earnings put her in to a less favourable position for getting a mortgage, the court could order that the wife should get a greater share of the proceeds of sale. The court may compensate the husband by ordering lower maintenance to the wife - or none at all. 47. The shares of the proceeds of the sale will be expressed in percentage terms or a fixed figure. A percentage share ensures that if the property sells for far more than was anticipated, each will not lose out. A fixed figure ensures that the partner, less likely to be able to afford to buy a house otherwise, receives enough to buy a home. It anticipates the home could be sold for less than expected. 48. If the house has been bought with a States Loan at discounted mortgage, and the house is sold within the period of the loan, the couple has to pay back to the States of Jersey whatever subsidy they have received, however the Department do have discretion to reduce the amount repayable, or to waive it in full, in cases of hardship, and legal advisers could make representation on the couple's behalf. The Department will consider an application by the wife to take over the States Loan if she is remaining in the house, but the amount of subsidy would be dependent on the settlement. 49. If a sale of matrimonial property is planned, anyone who claims to have a beneficial interest in the property due to financial contribution - for example a friend or relative who lived in the home and contributed to the mortgage - must be allowed to make representations before an order for sale is made. Buying out one partner 50. Once the court has decided what share each partner has in the home, one partner could pay the other's share and have the home transferred to her/him. If the value of the home is not known or cannot be agreed, the court will usually direct that the property be valued. It saves money to agree who is to do the valuation rather than each partner having one. For information about stamp duty on the transfer, see para 54. 51. The client would need to raise a lump sum. S/he could remortgage the home. The best place to try for a remortgage is the client's present building society, bank. S/he should never go to a finance company for a mortgage, as they charge high interest rates, and if she stops paying the debt mounts up very quickly. The client may get tax relief. The home is transferred to one partner 52. The woman can propose to the court that she wants the home transferred to her name. This may be accompanied by an agreement to accept less, or token maintenance. This arrangement 'trades off' money with the home. It has the following advantages:-
53. If the client can choose not to have maintenance, it may be worthwhile to get an order for even a token sum, for example £1 per year, as she can then apply to have the order varied. If she does not have an order, it cannot be raised. Stamp duty on transfer of matrimonial home 54. The Stamp Duty payable on the transfer of property following a Court Order for divorce, judicial separation or annulment of a marriage is much reduced from the usual duty payable. The fee is £5 for each page of the contract with a minimum fee of £10. The value of the property is irrelevant. Deferred sale 55. 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 and / or finishes full-time education. The period specified might also be until the client remaining cohabits, re-marries, sells the property or dies. The wife may wish at a later stage to buy out her husband's share of the home, but she could only do this with his agreement. 56. The main problem with a deferred sale is that the arrangement usually causes difficulties later for the woman. She will not necessarily be able to buy a new home later as it can be difficult to get a mortgage when older. However the proportions agreed at the divorce should ensure that a woman will have sufficient capital when the house is sold to rehouse herself. 57. If the woman remaining is paying off the mortgage on the house, she will be contributing to the value of the husband's eventual share of the proceeds of sale. If, however, there is no mortgage to be paid off, she will effectively be living in the house at the husband's expense. The court therefore may make an order requiring her to pay him an occupation rent from the time that the children cease to need the house as a home. 'J' or 'K' categories - spouses 58. As 'J' or 'K' Housing licences only apply to the individual licensee, the spouse and family of the licensee are in a very vulnerable position if the relationship fails unless they have qualifications in their own right, see para 60. Legally, the spouse may not occupy the home from the moment the licensee is not resident there. However, in practice, the spouse would have to leave the home in as short a time as practically possible. 59. Normally, as 'J' category residents would only have been in Jersey for a limited time, the spouse, usually a wife, chooses to leave the Island to return to a previous home area. This can cause problems of access where there are children. Occasionally, the whole family will choose to return, the breadwinner having to forfeit the 'J' category licence and job. In the case of 'K' category residents who may have been in the Island for a number of years, both partners may wish to stay in the Island. Unless the spouse has acquired qualifications in her/his own right through length of residence (see para 60) it would be necessary to find suitable alternative unqualified accommodation (eg serviced apartments or degrèvement property). Spouses gaining qualifications 60. Under Housing Regulation 1(1)(n) the spouse of a 'J' category licensee will gain qualifications in her/his own right after ten years residence in the Island with the spouse. This right does not extend to spouses of 'K' category residents who can only gain qualifications after eleven years continuous residence in the Island (under 1(1)(f)). In cases of 'K' category spouses, it may be possible for the spouse to obtain a 'K' category licence in her/his own right according to whether any divorce settlement would give sufficient funds. Appeals 61. There is the opportunity to appeal to the Housing Minister if there is a situation of hardship (other than financial hardship). It is unlikely that such an appeal would succeed in the case of 'J' category applicants, although there have been cases granted qualifications under 1(1)(g) from 'K' category applicants with fairly lengthy periods of residence. Types of Order regarding matrimonial home 62. 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 the woman. |
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