When a relationship between an unmarried couple breaks down, in the absence of family law based remedies for cohabitants, it can prove particularly difficult to decide who should remain in a rental property in joint tenancy. These issues are compounded when impecunious and uninformed litigants do not have legal representation. The Court of Appeal's decision two days ago on Tuesday, 14 July in Guerroudj v Rymarczyk  EWCA Civ 743 gives guidance how a court should approach this situation.
In 2011, Mr Guerroudj and Ms Rymarczyk entered into a joint secure tenancy of a ground floor flat secured from the local council partly due to Mr Guerroudj's back condition. Following an acrimonious relationship breakdown in mid-2013, with each accusing the other of violent behaviour, by 2014, they each applied for a transfer of the tenancy into their sole names.
On 17 June 2014, HH Judge McIntyre decided in favour of Mr Guerroudj as he was in a position to compensate Ms Rymarczyk, whereas she could not compensate him. The Judge included a liberty to apply provision as he was evidently unhappy about whether he had been given enough information about the prospects of either party obtaining accommodation if they had to quit. Ms Rymarczyk subsequently applied under this provision on the basis that Mr Guerroudj had established a prior need for housing due to his physical disability whereas she had no priority need, and would be unable to afford renting privately. At a further hearing on 23 July, Judge McIntyre ordered that the flat be transferred into the sole name of Ms Rymarczyk and that Mr Guerroudj should leave by 1 October 2014, on the basis that Ms Rymarczyk would suffer greater hardship if the tenancy were to be transferred into Mr Guerroudj's sole name.
Mr Guerrodj's counsel argued in the Court of Appeal on 9 June 2015 that the Judge ought not to have undertaken a further hearing at all, since the liberty to apply provision required evidence of an alternative to his order. Lord Justice Underhill decided, however, that neither party, particularly Ms Rymarczyk, had properly focused on the prospects of being rehoused by the council if required to quit. In these cases, the Judge has to make a decision on the best material available, which means proceeding on the basis of an educated judgment. It was not unreasonable to conclude that having treated Mr Guerrodj as a priority once, the council would do so once again.
In dismissing the appeal, Lord Justice Underhill was sympathetic to Mr Guerroudj for whom the outcome was hard. However, the truth was that a difficult decision had to be made so the outcome would be hard for whichever party lost. In reviewing the liberty to apply procedure, Judge McIntyre was criticised for failing to simply adjourn the hearing and keeping his counsel as to any provisional conclusion he might have reached. By adopting the course of initially deciding in favour of Mr Guerroudj, he was provided with an expectation of success which was then dashed, but also generated the complications leading to the appeal.
This case not only demonstrates the unfortunate hardship suffered by cohabitants who risk becoming homeless due to the breakdown of their relationship, but also identifies the difficult and lengthier procedures a Court must go through when considering such applications. It is symptomatic of the difficulties in providing family justice for impecunious litigants in person and strengthens the call for safety net legislation providing family law based remedies for cohabitants, as well as increasing access to justice for litigants in these cases.