Relationship Breakdown and Tenancies – FAQ

key in lock

 

At least once a day, if not more often, there is an internet search that arrives at Nearly Legal along the lines of:

“if i had a shared tenancy with my patner and we split up who would get the tensncy if we went to court? i have custody of 2 dependants”
“if we have a joint council tenancy can i kick partner out?”
man and wife in council property both on tenancy agreement

And many, many variations on this – “my ex is on the tenancy agreement, can he get the tenancy”, “who gets the council tenancy if I separate”. “Can I take my ex off the tenancy” and so on.

There is a lot of confusion and not a lot of clear information about tenancies and relationship breakdown out there. It doesn’t help that the law is rather complicated.

And it has to be faced that a significant proportion of these situations will involve domestic abuse.

So, here is an attempt at an FAQ, and with a list of agencies to contact where domestic abuse is concerned. (The contents apply for England and Wales only, I’m afraid. I can’t advise on Scottish law)

‘Their name is on the tenancy’

The first step is that you need to work out who has the tenancy. Many people think that someone’s name ‘being on the tenancy’ is important. But it all depends. If the name is there as a ‘permitted occupier’, or just as the spouse, partner or family member of the tenant, this doesn’t mean anything as far as the tenancy is concerned (we’ll get on to family rights later on). The only important thing – for now – is who is the named tenant.

There are two options.

A sole tenancy – there is one tenant, no matter how many other people’s names are ‘on the tenancy’ as occupiers.

A joint tenancy – there is one tenancy but two (or maybe more) people are named as tenants.

Sole tenancy
If you are the sole tenant, and your relationship has broken down, you can, in principle, throw out your ex without any problem. (Things may be more complicated if you are married or in a civil partnership, or if you have children. See below.) So, if you are the sole tenant, and you are not married or in a civil partnership, and you don’t have children, you can throw your ex out on 24 hours notice, as they are just a licensee.

Joint tenancy
This is where things get more complicated.

If you are both named tenants, it is highly likely to be a joint tenancy. What this means is that you both have a single tenancy, with all the rights and liabilities of it. You are each responsible for the whole of the rent, not a share of it. You each have the full right to occupy the property under the tenancy.

What this means is that even where you have split up and one of you has left the property to live elsewhere, the person who has left can’t just be ‘taken off the tenancy’, because they are still the (joint) tenant. They also remain liable for the rent.

But it only takes one joint tenant to end the tenancy – the whole tenancy for everyone – at least if the fixed term of any tenancy is over and/or the tenancy is periodic, or if a break clause allows earlier termination by one joint tenant.

The position for the tenant who has remained is therefore risky. The departed tenant could give notice to quit to the landlord without any warning and that would end the tenancy for the people still in the property as well. There would be nothing that the remaining tenant could do to stop it once the notice to quit has been given.

It also means that the only way for a landlord to sort out the position for the remaining tenant is to get that tenant to give notice, ending their tenancy, and then granting them a new sole tenancy. This is wholly up to the landlord, it is not a right for the remaining tenant. Unsurprisingly, landlords will often fail to do this. It may also mean tenants losing rights built up over time, like the right to buy.

What can be done?
The answers are not all straightforward.

If you are the sole tenant, and you want your ex out, you can tell them to leave on reasonable notice, and possibly change the locks if they don’t. (But see below if you are married or civil partners, or there are children).

If your ex is the sole tenant, it will depend if you are married, or civil partners, or there are children – see below – but you will need legal advice.

If you are a joint tenant with your ex, then they have a full right to access the property and to live there. There are steps that can be taken about this in some circumstances that we’ll come back to below.

If you are living in the property and your ex has left, they can end the whole tenancy – including your right to stay there – on a month’s notice, without telling you. There are steps that can be taken about this (see below).

Your ex can’t be just ‘taken off the tenancy’. This is not how it can work, and is wholly up to your landlord whether they will agree to you ending the tenancy and them giving you a new one.

Options

I can only outline possible options here. Each needs proper legal assistance and advice.

Seek your ex’s agreement
Where your ex has left, and it is a joint tenancy, it may be possible for them to assign their interest in the tenancy to you. This would need a deed of assignment. Not all kinds of tenancy are capable of being assigned though, so this would need advice.

Seek the landlord’s agreement
Where the ex has left, and it was a joint tenancy, you can seek your landlord’s agreement to you terminating the tenancy and being granted a new sole tenancy. Your landlord does not have to agree.

Where it was a sole tenancy in your ex’s name, you can ask the landlord to give you a new sole tenancy of the property, but this would need your ex to end the tenancy in their name.

Protecting a joint tenancy
Where the ex has left and it is a joint tenancy, you are at risk of the ex terminating the tenancy without you being able to do anything about it (assuming it is a periodic tenancy and not in a fixed term).

It is possible to apply for an injunction order from the court to stop your ex serving a notice to quit. However, this can only be for a limited time and only where there is a realistic prospect of the tenancy being transferred to you by one of the ways set out below. So it is not a solution, just a temporary protection.

You should seek legal advice and assistance on obtaining the injunction.

Excluding an abuser
Where it is a joint tenancy and there has been domestic abuse, it is possible to get a court order banning the abuser from the property. This ideally needs legal advice and assistance, as it is a serious step. It is not a permanent solution and also needs to have an injunction to stop them terminating a joint tenancy.

Transferring the tenancy
It is possible for a court order to be made transferring a sole tenancy to another tenant, or transferring a joint tenancy into one tenant’s sole name. But this can happen only in certain circumstances.

Where the parties are married, then it is possible to apply for an order that the tenancy be assigned to you solely under the Matrimonial Causes Act 1973. This can only happen within divorce or judicial separation proceedings, not at any other time. Sometimes it is also not possible for a tenancy to be assigned.

Where the parties are not married but have children under 18, there can be an application under the Children Act 1989 to transfer the tenancy to one of the parents alone for the benefit of the children. The Court will consider:

  • the income, earning capacity, property and other financial resources of both parties now and in the foreseeable future
  • the financial needs, obligations and responsibilities of both parties now and in the foreseeable future
  • the income, earning capacity, property and financial resources of the child
  • any physical or learning disability of the child
  • the manner in which the child was being, or was expected to be, educated or trained.

Both married and unmarried people, with or without children, can apply to the court under the Family Law Act 1996 for the transfer of the tenancy. But the decision is up to the court, and very good reasons would need to be made out for the tenancy to be transferred. What the Court will consider is:

  • the circumstances in which the tenancy was granted
  • the respective housing needs and housing resources of the parties and any relevant child. Housing resources include whether either party would qualify for rehousing under homelessness or allocations legislation.
  • the respective financial resources of the parties
  • the likely effect on the health, safety and wellbeing of the two parties and of any child
  • the respective suitability of the parties as tenants.

All of these ways of transferring the tenancy really need at least initial legal advice and assistance from solicitors who have a family law practice. Sadly, since 2013, there has only been very limited legal aid available, mostly where there has been domestic abuse.

Support and advice for victims of domestic abuse
Sadly often, these issues arise in the context of domestic abuse, which makes them even more important and urgent.

Here are details of some agencies that offer advice and assistance for those facing domestic abuse and some in family law.

Women’s Aid – advice and ways to find local support.
DAHA – list of national and local support services.
Freephone National Domestic Abuse Helpline, run by Refuge 0808 200 0247
Solace – advice
Advocate – pro bono legal help by barristers (can take direct requests during the Covid 19 emergency)
Rights of Women – family law advice and support
Galop (for lesbian, gay, bisexual and transgender people) – 0800 999 5428
Men’s Advice Line – 0808 801 0327
RCJ CAB – legal advice and assistance, including family
Advice Now – Video guide to applying for an injunction for domestic abuse and links to advice and support.