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When two cohabitants separate, the shared accommodation and household goods must be divided equally, regardless of who has paid more or whose name is on the contract. If cohabitants wish to have a different arrangement than that set out in the Cohabitation Act, they can create a cohabitation agreement.
During divorce or separation proceedings, the court may grant one spouse or cohabitant the right to remain in the common home. This right is not contingent on property ownership or whose name is on the lease agreement. The right of retention remains effective until the property division is finalized.
Conditions for the right of retention
The determination of which spouse or cohabitant is entitled to remain in the common home is based on who the court deems to have the greatest need for the residence. In case children are also involved in the equation, the decision depends on who will act as the children’s primary caregiver. There are other deciding factors too. These included the health condition of the parties involved, their age, any disabilities, their capability to get housing and their financial situation.
To determine which of the spouses gets the right of retention, any one cohabitant or spouse needs to apply to the court, and submit an application. The matter is then adjudicated as a separate case, with the court deciding who has the greater need for the property. Generally, the person granted the right of retention is allowed to stay in the home until the property division is complete, though an alternative date can be agreed upon.
When one party receives the right of retention, it does not mean that the other party is exempted from fulfilling their respective financial duties pertaining to the property involved. The parties involved will continue to share joint liability to pay the rent along with different other household expenses. Having said that, the court can order the issuance of compensation for using the property.
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Advantage law firm was established with the purpose of helping people with their legal matters. We are experts in addressing all the different aspects related to family law which includes the problems that stem from the right of retention. Our lawyers can also offer you representation in court. Get in touch with us for any assistance you need for your legal problems.
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