Published: Fri, 12 Oct 2018
Wiseman v Simpson  1 WLR 35
Exclusion of a spouse from the premises of property of which he/she is a joint tenant.
A young unmarried, co-habiting couple were joint-tenants of a council flat. One year later, the relationship became unhappy and the women changed the locks and refused her partner re-entry of the flat. Living with his parents, the man applied to the Court under Section 1 of the Domestic Violence and Matrimonial Proceedings Act 1976 for an order to allow him to return.
The question arose as to whether the women could lawfully exclude a joint tenant of the property from the premises in the context of their ‘spousal’ relationship.
The Court held that Section 1 of the Domestic Violence Act 1976 must be read in lieu of Section 1(3) of the Matrimonial Homes Act 1983 which requires any order of exclusion of a spouse to be “just and reasonable” in consideration of all circumstances. The first instance court had ruled the man’s exclusion reasonable as he had alternative occupation and the couple ceased to be ‘in love.’ However, the Court of Appeal considered his exclusion to be “drastic” and reasoning to be “draconian” (p 43), emphasising the parties’ rights as joint tenants. The Court stipulated the principle that joint tenants of property simultaneously have “the right to occupy and neither can lawfully exclude the other.” (p 42). Thus, unless a joint tenant has legally infringed upon the rights of another, even if a joint tenant in property finds it intolerable to remain on the premises with another joint tenant, he/she would have no legal right nor remedy to exclude the other from occupation or possession of the property. Thus, the Court disapproved of the exclusion of the man from his flat and directed a new trial.
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