Info & Advice

What to consider regarding your rent if you separate?

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If you are renting your home and separating from your partner, having to deal with the uncertainty that comes with it can be extremely stressful. It is important to know what your rights are, particularly if your ex is pressuring you to leave. This guide aims to help you understand them and looks at a range of circumstances.

Joint tenancy with your partner

If you have a joint tenancy and are both named on the tenancy agreement, you are both legally entitled to remain living in the property. This is the case whether you are married, in a civil partnership, or simply living together. You also have the right to return to the property if you temporarily left.

Things can change quickly, however, and if your ex decides to move out, and there is no fixed term contract, they can give notice to your landlord of their intention to leave. This may have the effect of ending your tenancy. Although your landlord may agree to transfer the tenancy into your sole name instead.

As long as the joint tenancy is in place, you both remain liable for the rent. So, if your ex leaves without notice and refuses to pay the rent, then you will become liable for their share, too. If you are not working or on a low income, you may be eligible for certain benefits to help with the cost. You may also be entitled to help with your Council Tax.

If you cannot agree with your ex who should stay in the property and who should leave, then it may end up being decided by the court. In cases involving children, the court will tend to favour the person shouldering day-to-day responsibility, which tends to be the person the children will live with most of the time. This is because the court will always treat the best interests and needs of the child as a priority, and try to ensure stability is maintained.

Tenancy in sole name

If the tenancy is in your partner’s sole name, then your rights to remain in the property depend on whether you are cohabiting or married/in a civil partnership. Of course, if the tenancy is in your name and not your ex’s, then they may have to leave the property.

Those who are married or in a civil partnership have what is referred to as “home rights” and means that they are legally entitled to stay in the property despite it not being in their name. The tenancy could even be transferred into the other’s name as part of the divorce or dissolution process.

Cohabiting couples do not have any automatic rights to stay in a property when they are not named in the tenancy agreement, and your ex can ask you to leave. Although they would have to give you a reasonable notice period to do so. If you are in this position, you may be able to apply to the court for an occupation order if you feel the need to stay, for example, if it would benefit a child.

What are the rental property options?

This is an important consideration as things can get complicated, especially if the property is council-owned and you are both keen to stay because of the security renting from a local authority provides compared to renting privately. Options include:

  • Ending the tenancy

This option depends on whether the agreement allows you to end the tenancy early or if the landlord is prepared to agree voluntarily to end it. As stated above, in a joint tenancy, even if one party moves out, they will still be liable to the landlord for any rent arrears until their name has been removed from the agreement.

  • Transferring the tenancy from a joint tenancy agreement

If a landlord is concerned that a sole income is likely to increase the risk of rent arrears building up, they may not be readily agreeable to transferring it from joint names. It may be best to approach your landlord once you have sorted out child support and maintenance payments because you will then have a clear idea of your income and expenditure. Consider asking a parent or close family member to stand as a guarantor for the rental payments as it may help persuade a reluctant landlord.

  • Transferring a sole tenancy to your ex

If your ex is not named on the tenancy agreement but they want to stay in the property, then it would be sensible to ask the landlord to transfer the tenancy into their sole name. If the agreement is not changed, the person named on the tenancy agreement remains liable for the rent, even if they leave the property.

It is possible for the court to make a property adjustment order for both private and local authority housing. The court has the power under the Family Law Act 1996 to order the transfer of certain tenancies, which is binding on a council or housing association.

If you have tried sorting things out with your ex and are finding it difficult, you can get help reaching an agreement by using a specialist mediator who will help you find a solution without going to court.

What is the duty of the local authority to house me if I leave?

It is important to know that if you choose to end your tenancy or move out of your home, your local authority may think you have made yourself intentionally homeless. In this case, they may not be bound to find you somewhere to live.

If it is not safe to stay in the home because of domestic abuse, you can apply to your local authority and tell them you are in “priority need”. Your local authority will provide emergency accommodation and help you find long-term housing if you are eligible. If you urgently need your ex to move out of your rented home because of domestic abuse, you can ask to the court for an occupation order. This is an order removing one party from a home and prevent them returning for a specific period, although in some cases, this is open-ended.

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