Options if one partner is the sole tenant

The tenancy or license may be altered without involving the courts, based on housing law principles. The tenancy could be assigned, the tenant could give notice to quit, the tenancy could be surrendered, or the sole tenant or licensee could leave.

Family mediation can help families resolve disputes about children or financial matters away from the courts. It is a voluntary process where family members can meet safely in the presence of an impartial and independent family mediator to discuss disputes. It does not aim to help people get back together, but to help them manage their future better.

For more information see Gov.uk – Money and property when a relationship ends.

Assignment and surrender are not available to licensees, as both require a legal interest to be effective, ie a tenancy. A licensee can, however, effectively surrender a licence by agreement with the landlord.

There may be some relationship breakdown situations where a cohabiting sole tenant is willing to assign their tenancy to the other partner. However, there are often limitations on assignment, so people in this situation must first check whether they have a tenancy that is capable of being assigned.

The tenant/licensee may decide to give notice to quit to bring the tenancy/licence to an end. When this happens, the other partner will need to know whether the notice to quit actually brings the tenancy/licence to an end and, if so, what rights they might have to remain in the home.

In very limited circumstances, a non-tenant cohabitant may be able to prevent the tenant's notice to quit.

The law offers different protection to different types of occupiers, so each type of tenancy/licence needs to be considered separately.

Secure and introductory tenancies

If the tenant serves a valid notice to quit, it will end a periodic secure or introductory tenancy.[1] The remaining non-tenant cohabitant has no rights to remain in occupation, but the landlord must obtain a court order to recover possession.[2] The landlord does not need to prove any grounds for possession.

Valid notice to quit will also end the tenant's rent liability.

Assured and assured shorthold tenancies

Where there is a fixed-term tenancy, the tenant will only be able to end the tenancy during the fixed term if there is a break clause in the contract that allows this. Where this is the case, the notice will bring the fixed-term tenancy to an end and no statutory periodic tenancy will arise.

Once the fixed-term tenancy has ended, the remaining non-tenant cohabitant is a trespasser and has no right to a court order, because section 3 of the Protection from Eviction Act 1977 does not apply.

If there is no break clause, then any notice served will probably have no effect and the tenancy will continue until the end of the fixed term. If the tenant has left, no statutory periodic tenancy will arise and the remaining cohabitant has no right to a court order.

Where there is a periodic tenancy, a valid notice to quit will end the tenancy.[3] The remaining cohabitant has no rights to remain in occupation, and the landlord is not legally obliged to get a court order to recover possession.

If the landlord uses physical force to evict a non-tenant cohabitant, they may commit an offence.[4] The landlord should obtain a court order (this also applies where a fixed-term tenancy has ended).

Once the tenancy has been ended by valid notice to quit, the tenant will have no further liability for rent.

Regulated (protected) tenancies

Where there is a contractual tenancy, a valid notice to quit will end it. As long as the tenant remains in occupation, a statutory tenancy will normally arise.

If the tenant has left, no statutory tenancy arises. This is because occupation by a non-tenant cohabitant does not count as occupation as the tenant unless an occupation order has been obtained. If there is an occupation order, the non-tenant cohabitant gains the right to occupy as if they were the tenant. This keeps a statutory tenancy 'alive' as long as the occupation order lasts. Where there is no occupation order, the landlord does not need a court order to evict the non-tenant cohabitant, although they may wish to obtain one to avoid committing a criminal offence.[5]

Where there is a statutory tenancy and the tenant gives notice and leaves, the non-tenant cohabitant will have no right to remain unless an occupation order can be obtained. If no occupation order is obtained, the landlord would need to obtain a court order to evict the cohabitant.[6]

Tenancies with basic protection

Notice to quit by the tenant will normally end the tenancy, unless there is a fixed term, in which case it will continue to the end of the term subject to valid exercise of any break clause. The remaining non-tenant cohabitant will have no legal rights to remain in occupation. The landlord will need a court order to evict them but no grounds need to be proved.[7] The tenant's liability to pay rent will end with the tenancy.

Excluded tenancies

Notice will normally end the tenancy unless there is a fixed-term contract, in which case a break clause is needed. The landlord is not legally obliged to get a court order to recover possession, although if the landlord uses physical force to evict, they may commit an offence. [8]

Licences

Notice will normally bring the licence to an end unless there is a fixed-term contract, in which case there needs to be a term in the contract allowing for this. Some licences require a landlord to obtain a court order for possession. For licences where this is not required, the landlord may, however, commit an offence if they use physical force to evict.[9]

Validity of notice to quit

In order for a notice to quit to take effect, it must be valid. The minimum requirements for notice from a tenant/licensee to a landlord are that it:

• is in writing, and

• is given not less than four weeks before the date on which it is to take effect, and

• must expire at the start or end of a period of the tenancy, unless the tenancy agreement specifies otherwise

The above is the position for all types of tenancy and licence apart from regulated statutory tenancies and excluded tenancies and licences. A notice to quit will not be effective if it is served during a fixed term tenancy unless the tenancy agreement allows otherwise. For more details about notice requirements, see the security of tenure section.

If the notice to quit is invalid, the landlord or the tenant is entitled to treat it as ineffective and continue with the tenancy until a valid notice is served. However, the landlord and the tenant can agree to treat the notice as if it were valid, in which case the information in 'notice to quit' (see above) will apply.[10]

Preventing a tenant's notice to quit

There may be the possibility of preventing the tenant's notice to quit in very limited circumstances, where:

• there is an application for a tenancy transfer under the Family Law Act 1996, it may be possible for an order to be obtained to prevent the tenant cohabitant from serving a notice to quit to end the tenancy

• an order is applied for under the Children Act 1989, the same approach may be able to be taken. This possibility is only available to couples with children

However, an injunction may be of limited use. If breached, the tenant and/or the landlord may be held in contempt of court, but that may be of little comfort to the non-tenant partner, as a notice to quit served in such circumstances is a valid notice.[11]

For the tenancy to be surrendered, there must be an unequivocal act by the tenant and an intention to end the tenancy, eg the tenant handing the keys over to the landlord and stating they were giving up the property and the landlord accepting them. It is possible for an invalid notice to quit to show the requisite intention.[12] Where the tenancy is ended by surrender, the position for the non-tenant cohabitant remaining in occupation will be the same as if a valid notice to quit had been served.

The tenant/licensee cohabitant may leave without doing anything about the tenancy, leaving the non-tenant/non-licensee cohabitant in occupation. The situation will vary depending on the type of tenancy/licence. A non-tenant/non-licensee cohabitant does not have an automatic right to occupy so, in most cases, they will have no long-term right to remain. If, however, they obtain an occupation order, they can occupy as the tenant/licensee as long as the order lasts. The position where there is no occupation order is set out below.

Secure and introductory tenancies

If the sole tenant has left, the tenancy ceases to be secure or introductory and becomes unprotected, as the tenant is no longer occupying the property as their only or principal home.[13] In order to avoid this, it would have to be shown that the tenant had a real intention to return, which may be difficult in cases of relationship breakdown.

To evict the non-tenant cohabitant, the landlord would need to serve notice to quit on the original tenant to end the tenancy.[14] The non-tenant cohabitant will have been a lawful licensee when the secure or introductory tenancy ended, so the landlord would need to obtain a court order for possession.[15] No grounds for possession are needed.

Assured and assured shorthold tenancies

The position is the same as for secure tenancies (see above).[16] Where there is a fixed term, the unprotected tenancy is still subject to the fixed-term contract and, unless there is a break clause, the landlord would have to rely on any forfeiture clause in the agreement or wait until the fixed term expired to recover possession.[17] No notice to quit is required at the end of a fixed term, but the landlord would need to obtain a court order.[18] Where the tenancy is periodic, notice to quit must be served on the original tenant to end the tenancy and the landlord would need to obtain a court order for possession.

Regulated (protected) tenancies

For contractual tenancies, if the tenant has left, the contractual tenancy continues and the partner is allowed to remain until the contract ends. This can be done by:

• expiry of a fixed term

• exercise of a break clause in a fixed term

• service of notice to quit by the landlord or the tenant where the tenancy is periodic

• service of valid notice of rent increase by the landlord

Once the contract is ended, the protected tenancy ends and no statutory tenancy arises since the tenant no longer occupies the property as their residence.[19] The remaining cohabitant has no right to remain and the landlord is not legally obliged to obtain a court order. They may wish to do so to avoid committing an offence.[20]

For statutory tenancies, if the sole tenant leaves, the statutory tenancy ceases to exist, unless it can be proved that the tenant continues to occupy the property as their residence.[21] If the tenant clearly no longer intends to live there, the landlord will be able to obtain possession. No notice is required once the statutory tenancy ends, but the landlord must obtain a court order for possession.[22]

Tenancies with basic protection

The position is the same as for assured and assured shorthold tenancies.

Excluded tenancies

Where there is a contract, the non-tenant cohabitant can occupy as long as the contract still exists. For periodic tenants, the landlord would have to give notice equal in length to the period of the tenancy. If there is a clause in the contract referring to notice, then this will have to be complied with. Where the contract is for a fixed term, it would continue until the end of the term unless there is a break clause. The landlord is not legally obliged to get a court order for possession, but they would be committing a criminal offence by using physical force to gain entry to the property against the wishes of someone inside.[23]

Licences

For some non-licensee cohabitants the position is the same as for excluded tenancies and there is no requirement for the landlord to obtain a court order for possession. Many non-licensee cohabitants may be entitled to 28 days' notice in the prescribed form and a court order.[24]

Where there is no agreement between the couple or it is not possible to assign the tenancy, the court can decide who should have the tenancy. Under the Family Law Act 1996, a tenancy can be transferred from one cohabitant or former cohabitant to the other.[25] This can only be done in respect of the home that the cohabitants occupied as if they were husband and wife or civil partners. Where the cohabitants have children, a transfer can be made under the Children Act 1989.

With effect from 22 April 2014, there is a single Family Court for England and Wales, bringing together the three previous tiers of the family courts; the High Court, county court and magistrates' court. The Family Court, with very limited exceptions, will deal with all family cases, including applications for protection against domestic violence and matters relating to the matrimonial or family home.[26]

England and Wales is divided into geographical areas, each of which has a Designated Family Centre, which is the principal family court location for each area and to which all applications should be made. In practice, the Family Court can sit at any of the local county courts and magistrates' courts.

The Family Law Act allows the courts to 'vest' a tenancy in one of the partners, rather than ordering the tenant to transfer it. This applies to secure, protected, statutory, assured or agricultural tenancies.[27] Vesting differs from assignment in that the order of the court effectively brings about the transfer of the tenancy from one cohabitant to the other as if it were a conveyance. No deed of assignment is necessary when the court orders the tenancy to be vested in the other cohabitant. The provisions apply only to a tenancy of property that actually was the cohabitants' home, and not to a tenancy of property which was only intended to be their home.[28]

There are specific criteria that determine who gets the tenancy. The court must consider all the circumstances, including:

• circumstances in which the tenancy was granted

• respective housing needs and housing resources

• respective financial resources

• the likely effect on health, safety and well-being of the two parties and of any child

• respective suitability of the parties as tenants

• nature of the relationship

• the length of cohabitation

• whether there are children

• how long it is since cohabitation ended[29]

Compensation

The Act also allows the court to order the cohabitant to whom the tenancy is transferred to pay compensation to the other.[30] If the court decides to award compensation, it may also direct that either:

• payment of the compensation is deferred until a specific date or until some specific event occurs, eg cohabitation with a new partner, moving home etc

• the compensation is paid in instalments

The court must not use the provisions to delay payment unless immediate payment would cause the new tenant greater financial hardship than the other party would suffer by having the payment deferred or paid in instalments. The directions can be varied at a later date by application to the court.

When deciding on compensation, the court must have regard to all the circumstances, including the:

• financial loss that would be suffered by the person losing the tenancy

• financial needs and resources of the parties

• financial obligations that the parties have or are likely to have in the foreseeable future, including financial obligations to each other and any children

Landlord's objections to a transfer of tenancy

If the court is considering ordering a transfer of tenancy under the Family Law Act 1996, it must give the landlord an opportunity to be heard.[31] The court will take the landlord's view into consideration when deciding whether to order a transfer of the tenancy.

When transfers can be effected

There is no restriction on the date at which a transfer can be made, other than the requirement for the court to take account of all the circumstances of the case.[32] If, however, the tenant has moved out, the tenancy may lose protection, so the non-tenant cohabitant would need to apply for a transfer before this happens or get an occupation order to maintain the tenancy.

A parent or guardian of a child or children may seek to have a tenancy transferred under the Children Act 1989. The court can order a tenancy to be transferred to a child or to the parent or guardian caring for the child if it is for the benefit of a child (or children) of the relationship.[33]

The tenancy must be one that can be assigned. If the landlord's consent is required, whether or not it will be given will affect the court's decision. Where an order to assign would be a clear breach of a tenancy agreement, the court may be reluctant to make such an order.

The court must consider the following factors:

• income, earning capacity, property and other financial resources of both parties now and in the foreseeable future

• financial needs, obligations and responsibilities of both parties now and in the foreseeable future

• 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[34]

As the transfer is meant to be solely for the child's benefit, the court must not consider matters that specifically relate to the parents' relationship, eg the length of their relationship or their age.

The power to transfer tenancies may also apply, in extremely limited circumstances, to licences, for example a fixed-term licence or a secure licence. An important issue will be whether the licence is capable of lasting for a reasonable time so that accommodation can be provided under it in the medium to long term. In this case, the transfer would be effected by a contract agreed by the cohabitants following a court order.

What happens to arrears, rent liability and possession orders when the court orders a transfer will depend on which legislation the transfer is effected by. Family Law Act

Where the court orders a tenancy transfer, it can also make directions about liabilities and obligations of the tenancy. It could decide on one of the following:

• all the rights of the tenancy are transferred, but subject to all covenants, obligations and liabilities[35]

• if the tenant cohabitant was themselves an assignee, then when the tenancy is vested in the other cohabitant they will be bound by any agreements that the tenant cohabitant was bound by, ie agreements that protected the original assignor[36]

• no obligations or liabilities can be imposed on the outgoing tenant on or after the date of the transfer, ie they cannot be held responsible for any arrears that accrue after the tenancy has been transferred[37]

The court may also order that both cohabitants are jointly responsible for any arrears or other liabilities existing at the date of the order, although it could alternatively order that one partner indemnifies the other against any such payment of liabilities.[38]

Where there is a possession order in existence at the time of a Family Law Act transfer, the tenancy will remain subject to the order even after the transfer.[39] For sole tenancies it will not be possible to enforce the order against the new tenant, as it will not be in their name so the landlord would need to start new possession proceedings against the new tenant to repossess on breach of the existing order.

Children Act

Transfers under this Act take place by way of an order to the tenant to assign the tenancy. This means that the rules on assignment apply.

Where there are arrears that accrued before the assignment, these remain with the original tenant (assignor) unless the new tenant (assignee) specifically takes responsibility for them in the assignment and the landlord agrees to release the assignor from their liability.[40] Where arrears accrue after the assignment, if the tenancy began after 1 January 1996 the new tenant (assignee) is the only person liable for them.[41] Where the tenancy began before this date, the landlord could take action against the assignee or the assignor.

If there is a possession order in existence at the time of the assignment, the tenancy will still be subject to it. For sole tenancies, it will not be possible to enforce the order against the new tenant as it will not be in their name, so the landlord would need to start new possession proceedings against the new tenant to repossess on breach of the existing order.