Can I change the locks on our family home following separation?
Changing the locks without consent is unlawful
Can you change the locks on the jointly owned family home following separation? Is it legal to change the locks on the jointly owned family home following separation? Do you need the other person’s permission to change the locks on the family home? These are all common questions which are often raised by clients following the initial stages of separation.
When a property is jointly owned by two or more people, unless there are legal constraints, each owner has a right to occupy the property even if that person moved out and wants to move back in. This, therefore, makes it unlawful for one owner to change the locks on the jointly owned family home without the other’s consent. In a nutshell, neither party has a right to lock the other person out. If your ex-partner has changed the locks on the joint family home without your consent, you could essentially contact a locksmith to change the locks to allow you to regain access to the jointly owned property.
A joint owner can in theory use “reasonable force” to re-enter a property they have been excluded from. However, they must ‘make good’ (repair) any damage caused and they should never try to forcibly re-enter an occupied property as they could be committing a criminal offence.
Most laypeople are not aware that Section 6 of the Criminal Law Act 1977 provides that it is a criminal offence for a person to use or threaten violence to enter a property without lawful authority if there is a person on the premises who is opposed to their entry and the person attempting to enter knows this is the case. In fact, the Act specifically states that the fact that a person has an interest in or a right to possess or occupy the property does not in itself establish lawful authority and it does not matter whether the violence is directed against the person or the property itself.
It is also important to realise that in some instances, such as, where one party has obtained an Occupation Order or a Non-Molestation Order, you are likely to be committing a criminal offence if you attempt to gain access to the family home by disobeying an order.
If your former partner wants to come back to your home to collect their belongings, it is best you both agree a mutually convenient date and time for this to take place. Where there is a high level of anxiety or acrimony, it is sensible for times and dates to be agreed through solicitors in writing, or at the very least there should be a written record of the arrangements for collection of the belongings, by way of a WhatsApp or text message exchange between the parties. Some people also arrange for a police officer to attend the property at the same time to ensure there are no altercations. If there is a Non-Molestation Order or an Occupation Order there will have to be arrangements made for a neutral third party to collect the non-occupying partner’s belongings.
If there is a fear of violence, abuse, aggression and/or intimidation, the only way to seek proper protection and exclude someone from a property that they would otherwise have a right to occupy, is to make an application to the court and obtain an Occupation Order. However, there have to be strong grounds for such an application as the person seeking the order will need to prove to the court that it is appropriate for their ex-partner to be excluded from a property they have the right to live in. The court needs to be sure that an Occupation Order is required to safeguard either the wellbeing of the applicant and/or the welfare of any child before making the Order. This is not always easy and in many cases, there will simply be insufficient grounds to satisfy the court that an Occupation Order should be made.
In the event that the Court grants an Occupation Order, the person occupying the property will be entitled to change the locks to prevent their ex-partner from gaining entry and thereby posing a risk to them or any child who lives there.
Regardless of the immediate post-separation arrangements, in the longer term, both parties will need to come to an agreement as to whether the property is going to be sold on the open market or transferred to one of the parties. In the absence of agreement, one of them will have to apply to Court for an order determining what is going to happen to the property and how the equity is to be divided.
It is very important that clients understand what they can and cannot do before they take steps which they may later regret. We recommend that you seek legal advice before you change locks on the family home. If you require advice from specialist Family Law solicitors, please do not hesitate to contact Heald Solicitors LLP on 01908 662 277 to arrange an appointment.