Dividing the family home on separation if you were cohabiting – 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. The options available if you’re not married or in a civil partnership 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’ve ended your tenancy you will have no rights to remain in the property.

This article is aimed at couples who are not married or in a civil partnership and who are trying to work out what to do about the family home after they split up.

If you want information about what to do in the early stages, read our guide Protect your rights to your home during separation - renting.

Getting expert advice

As a general rule, it’s better if you can agree with your ex-partner what you will do about your home.

However, housing law is very complicated. That means you may have rights to live in a property, transfer or end the tenancy – or responsibilities to pay the rent – that you’re unaware of if you try to work things out yourself.

It’s a good idea to talk to an adviser from a housing rights charity (as well as to 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, or you have children, you could consider using a mediator, who’s an impartial third party. You can find a mediator:

What the court can decide

In some cases, you may be able to go to court for permission to carry on living in the property.

If you have children who will live with you for most or all of the time, you may be able to go to court to get the tenancy transferred into your name. The priority should be to make sure that your children have somewhere suitable to live, especially if they are younger (still at school).

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

If the tenancy is in your name alone you can ask your ex-partner to leave, although they may be able to go to court to get the right to stay there. Whoever is staying must make sure they can afford to pay the rent.

Renting from a private landlord

Your ex-partner doesn’t have any rights to stay in your home, unless they have a court order saying they can. You can ask him or her to leave and they would not have the right to stay in the long term.

If you decide to leave the property – and are happy for your ex-ex to remain –you will have to end your tenancy formally to allow your ex-partner can take up a new tenancy.

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

Renting from a social landlord

Find out if you have the right to sign over your tenancy to your ex-partner. It will all depend on what’s in your existing tenancy agreement with your social landlord (housing association, housing cooperative, the Housing Executive, local authority).

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 the rent until the tenancy ends. Try and agree between you what you will do.

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

Either of you can give notice to end the tenancy, which may be a problem if your break-up is acrimonious.

Renting from a private landlord

Either or both of you can continue living in the property as long as your tenancy agreement lasts and you can pay the rent. Depending on what the tenancy agreement says, you may not have an automatic right for the tenancy to be taken over by just one of you.

However, your landlord may be happy for you to do this as long as you can afford the rent. Your landlord may ask for references or a ‘guarantor’ (who will promise to pay the rent if you can’t), and may charge for this.

If one of you wants to stay in the property, don’t end your existing tenancy without getting a new one from your landlord. Once you have ended your tenancy, you will have no rights to remain there.

If you want to move out, you are responsible for making sure the rent is paid (and any damages paid for) until the end of your tenancy or notice period. You’re each responsible – so if your ex-partner can’t or won’t pay – the landlord could ask you for the full amount, and vice versa.

Renting from a social landlord

You both have the right to stay in the property as long as your tenancy lasts and you can pay the rent. You may be able to sign over the tenancy to your partner – depending on what the tenancy says. But some social landlords have a policy of not automatically converting a joint tenancy to a sole tenancy when a relationship breaks down. Instead, they will look at each individual case.

If you have what’s called a ‘secure tenancy’ it gives you the right to live in the property for life – but you’ll lose this very valuable right if you end the tenancy. Take specialist advice before deciding whether to take this course of action.

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

If the tenancy isn’t in your name it may be hard to get the long-term right to stay there. You may be able to get an ‘occupation order’ (‘occupation rights’ in Scotland) in the short term and a tenancy transfer as a long-term solution, but this will depend upon the circumstances.

Renting from a private landlord

If your ex-partner, whose name is on the tenancy, is happy to move out and for you to stay, you should both ask the landlord if you can do this. The landlord may agree to you doing this as long as they believe you can cover the rent.

However, they will want to know that your ex-partner is happy to give up the tenancy, and the landlord will want him or her to provide something in writing (it can be as informal as a text or an email) to show this is the case.

Renting from a social landlord

If the rental agreement is in your ex-partner’s name only and he or she agrees to you taking over the tenancy agreement, you should contact your social landlord (and perhaps a housing charity) to find out what you need to do.

Ending your tenancy early

If you have started 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 think carefully before giving up valuable housing rights.

Your next step