Wiseman v Simpson [1988] 1 WLR 35
Exclusion of a spouse from the premises of property of which he/she is a joint tenant.
Facts
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.
Issues
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.
Decision/Outcome
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.
Updated 21 March 2026
This case summary is broadly accurate in its account of the facts and the Court of Appeal’s reasoning in Wiseman v Simpson [1988] 1 WLR 35. However, readers should be aware of significant subsequent legislative changes that materially affect the legal context.
The Domestic Violence and Matrimonial Proceedings Act 1976 and the Matrimonial Homes Act 1983, both discussed in the article, have been repealed and replaced. The primary legislation now governing occupation orders and exclusion from the family home is Part IV of the Family Law Act 1996, which consolidated and reformed this area of law. The 1996 Act applies to a broader range of relationships than the earlier statutes, including cohabitants, and sets out the criteria courts must apply when making occupation orders. References to the 1976 and 1983 Acts in this article should therefore be read as of historical interest only.
The underlying common law principle that neither joint tenant can lawfully exclude the other from jointly held property, as stated in Wiseman v Simpson, remains good law and continues to be applied. However, under the Family Law Act 1996, courts now have statutory powers to make occupation orders that may override that common law position in appropriate circumstances, including where cohabitants or former cohabitants are involved.
Students should consult the Family Law Act 1996 as the current legislative framework when researching this area.
