When a marriage breaks down, or when a married couple separates or goes through a divorce, the issue of who has the right to continue living in the family home arises almost immediately. The law provides direction in such cases, and courts may intervene to re-arrange a family's living situation if circumstances warrant such intervention.

Today, I'll address some of the most common living situations that couples find themselves in. I will leave the discussion of the effect of domestic violence on a family's living situation to a later column.

When you rent your home.

The right of you or your spouse to continue residing in a family home that is not rent-controlled largely depends on the rental agreement that exists with the landlord.

If both you and your spouse are tenants under the lease, you both have a right to reside in the premises. Even if one of you leaves the home temporarily, that person should usually have no problem returning home, as they will not have given up possession of the premises merely by ceasing occupation.

It is advisable for the non-residing spouse to notify the landlord of their whereabouts in case any issues arise in relation to the lease. For example, if the landlord serves a Notice to Quit for non-payment of rent, the non-residing spouse may want to know this and possibly act on it to rectify the problem.

If you are not a tenant under the lease and you want to stay in the home after your spouse leaves, you may need to negotiate a new tenancy agreement with your landlord that makes you a tenant in your own right.

Alternatively, you could have the lease amended to include you as a tenant. If your spouse's name is on the lease, such amendment will require the co-operation of your spouse and this is a good reason for raising the issue while relations with your spouse are still good.

While it is possible in some cases to establish a tenancy through the courts, it is usually difficult to do so, even in cases where you may be paying the rent.

If your spouse is on the lease as the tenant, he or she may unilaterally decide to give notice to the landlord to discontinue the tenancy. You may be able to obtain a court injunction forbidding service of such a notice, and therefore you should consult a lawyer if you suspect this is occurring.

Once proper notice has been given to the landlord, however, it is difficult to have such notice set aside by the courts. In such a situation, your best option may be to enter into a new tenancy with the landlord, if possible.

If you and your spouse reside in rent-controlled accommodation then the position is quite different, at least for the wife. For example, a deserted, divorced or separated wife of a tenant may be deemed to be the tenant if she was living in the premises at the time the tenant left, and if she continued to live in the premises and pay the rent.

In other words, if a wife's husband leaves home, the wife becomes the tenant in his place.

When you own your home.

Subject to any court orders re-arranging the living situation: If you and your spouse own your matrimonial home jointly you both have a right to live there, pending resolution of the divorce and the determination of who is awarded the matrimonial home.

If only your spouse's name is on the deed to the family home, and you wish to remain in the home pending resolution of the divorce, broadly speaking, you have a right to stay in the family home at least until the marriage is dissolved. But, if you move out of the home voluntarily you may have difficulty establishing a right to move back in.

The spouse who has his or her name on the deed has the right to stay in the home. As the legal owner, he or she may move back in, even after leaving the home for a period of time.

Exclusion orders.

Regardless of whose name or names appear on the deed, exclusion orders can be made preventing you or your spouse from residing in the matrimonial home, or in part of the matrimonial home.

Generally speaking, an exclusion order will be made if it is proved that it is necessary for the protection of the health, physical or mental, of the complaining spouse or of a child who lives with the complaining spouse.

While each case is decided on its own facts, it is clear that the usual tension and unpleasantness that accompany a marriage breakdown are not sufficient grounds for ordering a spouse out of the matrimonial home.

In my next column I will address some issues surrounding the re-arrangement of finances on marriage breakdown.

Nita Grewal is a litigation attorney and a member of the Appleby Spurling & Kempe Family Law Team. You can write to her with your questions or comments at Familylaw yASK.BM. Copies of Ms Grewal's columns can be obtained on the Appleby Spurling & Kempe website at www.ask.bm.

This column should not be used as a substitute for professional legal advice.

Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.