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The family home after you separate: renting

<a href="http://" target="_blank">Samantha Downes</a>

Samantha Downes

08 Jun 2018

Separation and divorce are difficult enough without having to worry about unravelling your finances, but there are ways to make it easier. Our guides take you through what you need to know step by step…

 

If you and your partner are renting the family home, what happens after you separate depends on how your tenancy agreement was drawn up and what type of landlord owns the property you live in; whether it is either privately rented or social accommodation.

UK property law is fairly complex, so you might want to seek legal advice. We will try to cover most of the basics in this guide but also point to organisations that can help.

Remember that, if possible, it’s always best to try and reach an amicable agreement with your ex-partner. This is not always possible, but aim to make it your first option.

At all times the court will place a priority on making sure that your children have somewhere suitable to live, especially if they’re still at school.

First, let’s look at the different types of tenancy agreements:

If you are not on the tenancy agreement

If only your partner’s name is on the agreement, then legally they are responsible for paying the rent.

Your options:

  • Stay: you may be able to apply to a court for permission to carry on living in the property.
  • Transfer: if your children are likely to be living with you, then you might be able to go to court to get the tenancy transferred into your name.

If you are the sole tenant

If your name is on the tenancy agreement

If you are named on the agreement, you are also legally responsible for paying the rent.

Your options:

  • Leave: if the tenancy is in your name, you can ask your ex-partner to leave, although – as we’ve noted above – they might be able to go to court to get the right to stay there.
  • Stay: continue to live together but make sure the rent is paid.

Both your names are on the rental agreement

If this is the case, then you are both responsible for paying the rent. This also means either of you can end the tenancy. This could prove an issue if your split is a difficult one.

Your options:

  • Both move out.
  • One person moves out and signs the tenancy over to the other partner.

Now we’ve looked at the different types of agreement, there are different rights depending on what kind of landlord you have.

You are renting from a private landlord

The tenancy is in your name

Your ex-partner doesn’t have any rights to stay in your home, unless they have a court order. If you decide to leave but your ex wants to continue to live in the property, you will have to end your tenancy and your ex will have to sign a new agreement.

If you are both on the tenancy agreement

You might not have an automatic right for the tenancy to be taken over by just one of you. However, if you can prove you can keep paying rent your landlord might be happy to do this; be aware you may have to provide references or a guarantor who can pay the rent if you can’t.

If your partner’s name is on the agreement

If they are happy to move out and for you to stay, you should both ask the landlord if you can do this.

The landlord might agree to you doing this as long as they believe you can cover the rent.

However, the landlord may want something in writing to make sure your ex is happy switching the tenancy over to you.

Other things to remember:

  • If you have a fixed-term tenancy with a private landlord, you probably can’t end it early without having to pay the rent up until the term ends. Some landlords are prepared to be flexible, although legally they don’t have to be.
  • If one of you wants to stay in the property, don’t end your tenancy without getting a new one from your landlord.
  • Make sure any agreement with your landlord is covered in writing, whether a letter or even a text.

Renting from a social landlord

A social landlord is normally either a housing association, housing cooperative or a local authority.

If it’s your name on the agreement

You may be able to sign your tenancy over to your ex-partner. This will depend on the agreement you have. If your social landlord doesn’t agree your partner might be able to get a court order.

In Scotland, you might have the right to sign over your tenancy to your husband, wife or civil partner.

If you have a secure or short secure tenancy, you can pass it onto anyone who has lived with you and who has used the property as their main home for the last six months or more. You must write to your landlord and ask their permission. They have to give you a good reason if they decide to refuse.

If you are both on the agreement

Although you both have the right to stay in the property, and you may be able to sign over your tenancy to either one of you, some social landlords will not automatically let you do so; they will look on it on a ‘case-by-case’ basis.

If you have a ‘secure tenancy’ you have the right to live in the property for life. You need to take advice if you are considering giving up this type of tenancy. This guide explains why.

If the tenancy is in your partner’s name

If the tenancy isn’t in your name, you may struggle to obtain the long-term right to stay there.

You should contact your social landlord and perhaps a housing charity such as Shelter to find out what you need to do.

You need to carefully consider giving up a social landlord tenancy agreement. This guide has information on how to protect your rights to your home during divorce or dissolution if you’re renting.

What happens if we don’t agree?

Consider using a mediator, who’s an impartial third party, someone who can help you discuss your options together.

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