Your rights to a rented home during divorce, dissolution or separation

Navigating a divorce or the dissolution of a civil partnership can be extremely stressful, with uncertainty about the future of your living arrangements only adding to the pressure.

If you’re renting your home it’s important to know what your legal rights are during this process, especially if your ex-partner is pushing you to leave.

This guide aims to help you understand them if you are unsure, and looks at a range of different circumstances. In the case of divorce or dissolution, these rights will apply right up until the process is legally concluded, by which point either you and your ex-partner will have reached an agreement about your living arrangements, or the court will have made a decision if you’ve been unable to resolve things yourselves. 

If you’re finding it difficult to reach agreement with your ex over who will stay and who will leave, or whether you both go, it can be a good idea to seek mediation or professional legal advice.

For more information on mediation, or to find your nearest mediation service, visit the National Family Mediation website. Alternatively, you can find a solicitor with the help of Resolution, a membership organisation for professionals who work with separating couples. All members commit to taking a non-confrontational approach to help couples resolve their issues.

More separating couples than ever are looking for ways to untie the knot, amicably, without fighting through lawyers. If you find yourself in this position and are looking for somewhere to start, we have partnered with amicable, who specialise in helping couples through divorce, separation and co-parenting. amicable focuses on making an arrangement that makes sense for your unique circumstances, working with both people to ensure the best possible outcome every single step of the way. If you would like to see whether amicable could work for you, book a free 15-minute call with an amicable Divorce Coach.

How to proceed if….

You have a joint tenancy with your ex-partner

If you and your ex-partner have a joint tenancy (where the tenancy agreement is in both of your names) you are both legally entitled to stay in the property you’re renting, whether you are married, in a civil partnership or simply in a long-term cohabiting relationship. You also have the right to return if you have left the property temporarily.

Be aware that things can change quickly if your ex-partner decides to move out. Provided it is not a fixed-term contract, they can give notice to your landlord that they intend to leave, which may end your tenancy, although your landlord may agree to transfer the tenancy to you instead.

As long as you continue to have a joint tenancy, you are both still jointly responsible for the rent. If your ex-partner leaves without notice and refuses to pay rent then you might become liable for their portion too, and may want to check if you are eligible for housing benefits to help with the cost. You might also be able to get help with your Council Tax. Find out more about some of the benefits you might be entitled to in our article Am I entitled to claim any benefits when divorcing or separating?

If you and your ex-partner cannot agree on who will be staying and who will be leaving then it will likely end up being the court’s decision. If there are children involved then the court will tend to favour the primary caregiver; that is, the person with whom the children will be living most of the time. This is because the court will always prioritise the interests of the child, and try to make sure they have the most stability going forwards.

Your tenancy is in your ex-partner’s name only

If the tenancy agreement is in your ex-partner’s name only, then your rights depend on whether you and your ex-partner are cohabiting or married/in a civil partnership.

If you are married or in a civil partnership then you have what are known as “home rights”, meaning that you legally have the right to stay (in Scotland this is referred to as being a “non-entitled spouse/civil partner”). The tenancy could even be transferred to you during divorce or dissolution proceedings; this might be because your ex-partner agrees to, or the court could order it if you are going to be the primary carer for your children after separation.

If you are not married or in a civil partnership then you do not have any automatic rights to stay, and your ex-partner can ask you to leave if they give reasonable notice. You may be able to apply to the court for an occupation order if you feel you need to stay; for example, if it would be for the benefit of a child.

Of course, this is all true in reverse too. So if the tenancy is in your name and not your ex-partner’s, be aware of what their rights are.

Your ex-partner is being violent or refusing to leave

In some cases, your ex-partner may behave violently, make you feel threatened or refuse to leave the home even if they have no right to remain. In these cases, you can apply for an occupation order to force them to vacate the property whether you are married, in a civil partnership, or cohabiting. You can also call the National Domestic Violence Helpline for advice.

You have legally separated but financial proceedings are not complete

Financial disputes between you and your ex-partner may persist after divorce or dissolution is finalised. In these cases, you can apply for a “continuation order” to extend your home rights into this period too.

Finally...

There are all sorts of factors to take into account when working out where you and your former partner will live after your split, such as whose name or names your current tenancy is in, the legal nature of your relationship (for example, whether you’re married, in a civil partnership or cohabiting) and whether there are children involved.

Whatever your circumstances, don’t be pressured into leaving your home without knowing your options or seeking legal advice first.

It’s a good idea to talk to your landlord and keep them updated throughout the process, in case you need to negotiate the tenancy agreement with them or discuss rent. It’s also worth speaking to an adviser from a housing rights charity, who should be able to explain your rights to you in more detail based on your individual circumstances.

You can find out more about the steps you’ll need to take when divorcing or separating in our article Sorting out your finances when a relationship ends.

Have you split up with a partner when you were renting a property together? Did you find the process painful or straightforward? We’d be interested in hearing from you. You can join the money conversation on the Rest Less community or leave a comment below.

Links with an * by them are affiliate links which help Rest Less stay free to use as they can result in a payment or benefit to us. You can read more on how we make money here.

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