Married and civil partner joint tenant relationship breakdown law
For spouses and civil partners who are joint tenants or licensees, the relevant law after the breakup is a combination of matrimonial, family and housing law.
Legal rights to occupy
Where a married couple or civil partners are joint tenants/licensees, both spouses/civil partners have legal rights to occupy the matrimonial home. Their right of occupation arises because they have a contractual or statutory right to occupy from housing law. Because of this, no special matrimonial rights to occupy are granted to them under the Family Law Act 1996. Their rights will continue for the duration of the tenancy/licence unless they are ended by the tenants'/licensees' own actions, the actions of the landlord, or by a court order.
Liability for rent
Both spouses/civil partners are jointly and separately liable for the full amount of the rent, regardless of who is occupying the home. Neither spouse/civil partner can exclude the other without a court order.
The statutes that govern the action that can be taken by married sole tenants, married sole licensees and their spouses in relation to the matrimonial home are the Matrimonial Causes Act 1973 and the Family Law Act 1996. The Children Act 1989 may also be relevant if there are children.
The Matrimonial Causes Act 1973 gives the courts wide powers to decide who gets what in the long term in financial and property terms. It can make an order for a tenancy to be transferred from one spouse to another in conjunction with proceedings for divorce, judicial separation, or nullity. Applications for property transfer orders and/or financial provision are normally made in the county court. On 5 December 2005, the Civil Partnership Act 2004 came into force, allowing applicants of the same sex to apply for civil partnerships. On termination of the partnership, the parties will have the same rights to financial relief as married couples on divorce provided for in the Matrimonial Causes Act 1973.
The Family Law Act gives married couples the right to apply for an occupation order of the matrimonial home. It also allows the courts (County Court or High Court) to order a transfer of liabilities in respect of a matrimonial home rented solely by one of the spouses and order a transfer of tenancy from one spouse to the other. These rights have been extended by the Civil Partnership Act 2004 to cover gay and lesbian couples.
The rights of married and civil partner joint tenants to occupy the family home are also governed by housing law. Housing law explains the status of occupiers and determines their rights to occupy. It lays down rules about assignment of tenancies, termination of tenancies and licences, and rights to protection from eviction. It contains rules that determine who is liable for rent and arrears. The relevant legislation in each situation will depend on the particular type of tenancy or licence.
Joint tenancies and licences
A joint tenancy means that two or more people are the tenants of the property, even though other people may be living there. Joint tenants share the whole of the dwelling and are liable for the whole of the rent. None of the joint tenants can exclude any of the other joint tenants except by court order. The same situation applies to joint licensees.
Last updated: 26 February 2021