Terms & Conditions

[jomckeigue]

I have an appeal from a claimant as we have refused benefit. The property she lives in was owned by her ex husband until jan 2006. They are not divorced. She paid no rent before the sale and her ex husband paid the mortgage. He moved out in 2004. She has received no money from sale of the house as no equity and was not on the deeds of the property. I am wondering if we are right to refuse to pay based on reg 9. As this states partner not ex partner. help please!

[peterdelamothe]

There are a number of issues that spring to mind:

a) does she have the right to reside at the property anyway. She may be an ex-partner but she is still the lawful wife and has clear rights irespective of whose name the property is in. The days when the husband could disenfranchise wife are long gone!

b) can a legally enforceable tenancy agreement exist between husband and wife? Can a husband evict? I doubt it. There are plenty of married couples who would like to evict each other and the Courts would be full if it was that easy!

Did they used to live together in the property? If so, the old reg 7 (1) (c) would perhaps bite?

[jomckeigue]

Yes Peter they did used to live in the property together. they lived there together from 1999 to 2004 when he moved out.

[peterdelamothe]

9. Circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling

(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where—
(a) the tenancy or other agreement pursuant to which he occupies the dwelling is not on a commercial basis;
(c) his liability under the agreement is—
(i) to his former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners; or

[jomckeigue]

I was looking at reg 9 (1) (h) where her partner previously owned the property and less that 5 years have elapsed since he owned the property. the problem being that it was her now ex husband that owned the property BUT they aren’t divorced yet…does that make sense where i am coming from…does that technically mean, even though she wasn’t technically the owner through marriage she was? Am i getting myself in a muddle???

[peterdelamothe]

I think my point is that you can be an ex-partner but not an ex-wife or husband until you are formally divorced and a decree nisi is issued. When a divorce is settled, then both parties have arguable rights including shares in any property, monies and other assets. As I understand it, a married couple remain in principle enttled to each others possessions including property irrespective of the fact that they are no longer partners until the marriage is formally dissolved. I believe it is irrelevant whose name is on the various documents – that is after all the idea of a marriage?

Legally, I do not believe the husband could easily evict his wife from the property and I think the two regs I have posted above are your best starting point.

Just as importantly, I suggest you advise your customer to obtain advice from a solicitor spercialising in matrimonial law.

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