Ep. 39 - Can I change the locks after we've separated?

Jen Curtis: Today I'm joined by Anthony Cule, an associate in our family team in Norwich. Welcome, Anthony.

Anthony Cule: Thank you for having me.

Jen Curtis: Right. As with the other guests that we've had on for these episodes, I'm gonna put you on the spot. Can you give me a one-word answer to the question: Can I change the locks once we've separated

Anthony Cule: I can give you a one-word answer but it's certainly gonna be quite a lawyerly one. My one-word answer is maybe.

Jen Curtis: I like it. like it. Perhaps if I'm a bit kinder to you and let you explain that in a bit more detail. I wonder if we look at it in a particular scenario because there's lots of different variables that, that can come into play. But perhaps if we start by taking a a couple who have been living in a home where they are both the joint owners of the property. What sort of factors would come into play in how you advise them?

Anthony Cule: In, in that scenario, the answer is frankly a little simpler. Where two people jointly own the property, the answer is broadly speaking, no, you can't change the locks. That's the starting point. Your partner will have a right to live there, and that exists whether or not they are actually in fact living there at that moment. And I suppose the, the point is, even if they're not there at the time, say you're taking the advice, they have a right to return at any time.

Jen Curtis: Thanks, Anthony. That is really clear in that scenario, and I think what can sometimes feel difficult for people is this, possibly this fear of someone returning at any time. but perhaps changing the locks isn't the best way to deal with that because as though there could be some issues that that creates.

Anthony Cule: Exactly. In that scenario, you get a range of outcomes, I suppose. You get the, the sort of silly outcome of they can hire a locksmith to change the locks back or introduce a third set of keys to the property And then you get from the silly to the scary where they can force re-entry provided they then put right any damage caused. So you really want to avoid both those outcomes.

Jen Curtis: I completely agree because can end up having an issue about changing the locks, but that doesn't necessarily deal with some of the, the perhaps the underlying issues. What would your advice be perhaps if someone came to you saying, "I want to change the locks"? What other issues would you sort of point them to think about?

Anthony Cule: So then you'd be looking at really why the person in front of you has come to the conclusion they want to change the locks. Is it an issue of privacy? Is it an issue of safety? And then you would try to come to an agreement with the other owner of the property about whether they return or if they're in the property, whether they would agree to move out. And you'd start looking at what happens to the property in the long term. So, it's really with a, a practical head-on, and you try to come to an agreement without escalating the conflict, which of course, changing the locks a pretty surefire way to escalate things.

Jen Curtis: Yes. I completely agree. I, think when someone takes a unilateral step in relation to a property that is jointly owned it really does shift the tone of any conversations that, that might have been able to, resolve things more amicably. I imagine though that the situation can sometimes feel different where there is only one person who's the actual legal owner of the property. And I wonder, obviously, I would expect the same advice to, to be to try to avoid escalating things. But with the underlying legal position being different, I wonder what the considerations are there?

Anthony Cule: Well, then we would be looking at is there a way to protect the home rights that this person has? So, if they are married, that would be applying to the land registry for a matrimonial home rights notice, which confirms the non-owning party's right to occupy and return to the family home, which clarifies things. And then the same sorts of considerations apply.

So that would be our first step to protect those home rights before any unilateral steps are taken.

Jen Curtis: Sounds very sensible. And I think the home rights notice also adds a layer of protection. I know it's something that I often advise a lot about, where people worry that the house could be sold from underneath them. And again, having that, that documented at the Land Registry is an extra piece of the jigsaw in offering that, that protection.

Picking back up on, on one of the points you made before about sort of safety as being one of the reasons that someone might want to change the locks and prevent the other person from returning to the house. I just wonder if we can speak a bit about the options that someone would have in that situation if they are the person in the house who is fearing their ex-partner's return to the property.

Anthony Cule: Yes. Well, then the consideration would be should they apply for an occupation order, which is an order under the Family Law Act which can regulate who has the right to occupy a given property. It can vary or it can even extinguish home rights. There are a range of options that an occupation order can offer depending on what the person applying wants. So it can exclude someone entirely from the home, or it can, regulate that each person can only go in a specific part of the, the property.

Jen Curtis: And that's quite a significant thing for the court to intervene and impose on someone basically saying, "Even though you're the legal owner of the property, you're not allowed to live there."

Anthony Cule: Yes. So the advice I always give when thinking about occupation orders, I say these are quite draconian orders from the court's perspective, and so they're not orders that will be granted lightly. In terms of the considerations that the court will have, it will look at what's called the balance of harm test, first of all. Which is where if it seems to the court that the applicant and any relevant child will suffer significant harm attributable to the other person, the court has to grant the occupation order unless the other person and child will suffer harm that is the same level or greater. And so it's these scales. It is a balancing act that the court conducts.

Jen Curtis: It's one of our legal concepts that actually I think possibly makes the most sense to explain to someone. It really is weighing up the pros and cons for one person against the pros and cons for the other. And that in the first instance gives the court a steer on what it should do.

Anthony Cule: Exactly. And then if it can't come to a, a clear conclusion on the balance of harm test, the court can then have a look at what's called the core criteria, which is all the circumstances of the case, and the, the statute points out that that should include the housing needs and resources of the other party.

So is there anywhere else that either of these people could move to? Their financial resources and the likely effect of an order being made or not. So will it deter any applications in the future? These sorts of considerations. And the health, safety, and wellbeing of the parties and children as well.

Jen Curtis: No. It, there, there's a lot that, that goes into the court's consideration of these sorts of applications and I think they're really there for safety. And I think that can sometimes feel quite tricky for someone who is perhaps looking at some sort of protection where they just need sort of peace of mind.

There's not necessarily abusive or violent behavior from the other person. But they just want to know that property they're living in is their own. And that can be a real tension, I think when advising clients. And that's where I suppose it comes down to the bespoke advice in each individual situation.

It's great that this podcast highlights what the options might be. But it's always then going to depend, I think, on the, the individual circumstances of the case as to whether it's proportionate to apply to the court for these sorts of orders and whether or not we would then advise that the court is likely to make these orders.

So, we're back to another it depends scenario I'm afraid for our listeners. But certainly very valuable points to consider. Is there one sort of takeaway piece of advice that you would want someone to think about if they've been listening to this episode?

Anthony Cule: Well, it would be get early advice you feel your safety is at risk. Don't take unilateral steps. Take advice beforehand. And although we haven't mentioned it yet, for our unmarried listeners, suggest a cohabitation agreement as well to think whilst the relationship is good, what might happen if the relationship breaks down.

Jen Curtis: Yes, a very good point there in terms of being able to prevent possible conflict about who stays in the house if the relationship breaks down. thank you ever so much for joining us today, Anthony. It's been a pleasure to have you.

Anthony Cule: Thank you for having me.