Dividing the family home on divorce or dissolution if you’re renting

One or both of you may want to carry on renting your home after your break-up, especially if it’s convenient for work, your children’s school, or near friends and family. What you need to do and what your options are depend on your tenancy agreement and whether you’re renting from a private or social landlord.

Securing the rights to your home

If you are changing the terms of your tenancy, get the landlord to agree to this in writing before you end your existing tenancy. Once you have ended your tenancy, you will have no rights to remain in the property.

This article is aimed at couples who are trying to work out what to do about their rented family home when they divorce or dissolve their civil partnership.

If you are in the early stages of separating and want some information about protecting your rights to live in the home, read our guide Protect your rights to your home during divorce or dissolution if you’re renting.

Getting expert advice

Generally, it’s much better if you can agree with your ex-partner (husband, wife or civil partner) what you will do about your rented home. However, there may be long-term consequences that you’re unaware of if you work things out yourselves. It’s a good idea to seek advice from a housing charity (as well as from a family lawyer):

Dividing the family home through mediation

If you and your ex-partner don’t agree about what should happen – perhaps if you’re both on the tenancy agreement – you could consider using a mediator – who’s an impartial third party. You can find a mediator:

What the courts can decide

Most divorces or dissolutions don’t end up with a full court hearing to settle financial disputes, but it’s a good idea to have an understanding of what the courts could decide about your rented home.

Courts may be able to order that a tenancy is transferred from the tenant to their ex-partner. If you have children, especially if they are young, where they live will be an important consideration in reaching an overall financial settlement.

What are your options if you’re the sole tenant?

If the tenancy is in your name alone and you don’t want to stay in the property, you may be able to sign it over to your ex-partner. But it will depend on a number of factors, including the type of tenancy you have.

If you want to stay and your ex-partner agrees to move out, you can continue living there. But you must make sure you can afford to pay the rent on your own.

If you’re renting from a private landlord

One of you may want to continue living in the property. You could ask your landlord if the tenancy can be transferred or if a new tenancy can be entered into. Otherwise, you could make an application to the court for the tenancy to be transferred.

If you are able to come to an agreement with your landlord, it’s often best to enter into a new tenancy. But take legal advice before signing over or giving up a tenancy because you could be giving up valuable rights.

Always put in writing what you’ve agreed verbally with your landlord – an email or even a text may be acceptable. It’s important you do this, otherwise you could be accused of abandoning the tenancy and asked to pay the rent after you’ve moved out.

If you’re renting from a social landlord

You may have the right to sign over your tenancy to your ex-partner. If your social landlord – housing association, housing cooperative, the Housing Executive, local authority – won’t agree, your partner may be able to get a court order.

In Scotland, depending upon the type of tenancy you have, you may 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. However, they can’t refuse unless there is a good reason (for example, that they have already started eviction proceedings against you). If they do refuse, you may be able to get a court order.

You may be giving up very valuable rights by signing over a tenancy, so take advice before you do anything.

What are the options if you’re both on the rental agreement?

If you are both on the rental agreement, both of you are responsible for paying all of the rent until the tenancy ends. Try and agree between you what you will do.

  • You may agree that one of you moves out and the tenancy is signed over to the other person’s name alone.
  • You may decide that both of you will move out and that you end the tenancy agreement.

Either of you can give notice to end the tenancy (unless it’s a fixed-term tenancy), which may be a problem if your relationship breakdown is acrimonious.

If you’re renting from a private landlord

One of you may want to continue living in the property, but you won’t necessarily be able to do this after your divorce or dissolution, unless the tenancy is still in force or has been transferred by a court order. Ask your landlord if he or she will let one of you take over the tenancy. You will have to show that you can afford to pay the rent on your own. Your landlord may ask for references or a ‘guarantor’ (who promises to pay the rent if you can’t), and may charge for this.

If you’re renting from a social landlord

One of you may be able to take over a joint tenancy. If a court orders that a tenancy has to be signed over from one person (or joint names) to another, the social landlord must abide by this. You should make sure that you can afford the rental payments on your own.

What are the options if the tenancy isn’t in your name?

If the tenancy isn’t in your name, you may be able to get the long-term right to live in the property. But it could be hard if your ex-partner – or, especially, the landlord – doesn’t agree to this.

If you’re renting from a private landlord

Unless a court orders the tenancy to be transferred from your ex-partner’s name to yours, you have no automatic right to carry on living in the property after your divorce or dissolution is finalised.

Once your marriage or civil partnership ends, your right to remain in the property ends as well. Ask your landlord if you can take out a tenancy in your name, if you want to stay.

If you’re renting from a social landlord

If your ex-partner’s name is on the tenancy, you can only stay there while you’re married or civil partners. If your tenancy allows it and your ex-partner agrees to sign over the tenancy, you should contact your social landlord to find out what you need to do. If a court orders the transfer of a tenancy, a social landlord must allow this.

In Scotland, if your ex-partner’s name is on a secure or short secure tenancy, they can pass it onto anyone who has lived with them and who has used the property as their main home for the last six months or more. They should write to the landlord and ask their permission, but they can’t generally refuse. If the landlord refuses, and your ex-partner has a secure tenancy, they can appeal the decision in the Sheriff Court. If your ex-partner doesn’t have that type of tenancy, unless a court orders the tenancy to be transferred from their name to yours, you have no right to stay in the property after your divorce or dissolution has been finalised.

Ending your tenancy early

If you have a fixed-term tenancy with a private landlord, you probably can’t end it early. By law you are responsible for paying the rent until the fixed term ends. Talk to your landlord as they may be prepared to be flexible; otherwise, you could lose part or all of your deposit.

If you’re renting a property from a social landlord, you may be able to end your tenancy early, but seek advice as you may be giving up valuable housing rights.

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