Married sole tenants and spouses staying in the home in the long term

The tenancy/licence position may be altered without involving court action, based on housing law principles.

The main options are that the:

• tenancy could be assigned

• tenant could give notice to quit

• tenancy could be surrendered

• sole tenant or licensee could leave

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

There may be some relationship breakdown situations where the tenant spouse or civil partner is willing to assign their tenancy to the other spouse or civil 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 non-tenant/non-licensee partner will need to know whether the notice to quit actually brings the tenancy/licence to an end, and, if it does, what rights s/he may have to stay in the home. In some circumstances, it may be possible for a non-tenant partner (but not a non-licensee partner) to prevent or remedy the sole tenant's notice to quit. See preventing or remedying a tenant's notice to quit, below, for more information about this.

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 partner 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 occupant 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. A statutory periodic tenancy will arise and the non-tenant spouse can remain in occupation under matrimonial home rights. The landlord can only evict the non-tenant spouse if s/he has grounds for possession and obtains a court order.

Where there is a periodic tenancy, a valid notice to quit will end the tenancy.[3] The remaining spouse has no rights to remain in occupation and the landlord is not legally obliged to get a court order to recover possession. If, however, the landlord uses physical force to evict a tenant, s/he may commit an offence,[4] so in practice 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. Even if the tenant has left, the non-tenant partner can continue to occupy as if s/he were the tenant under matrimonial home rights and the statutory tenancy will continue as long as the marriage exists. Where there is a statutory tenancy and the tenant serves a notice to end the tenancy,[5] the situation is the same: the non-tenant partner can continue to occupy under matrimonial home rights.

In both situations, the landlord would have to seek possession by using one of the specific Rent Act cases. A possession order will only be granted if the court is satisfied that one of the cases applies and, if it is a discretionary case, that it is reasonable to make the order. This means that the non-tenant partner is likely to be able to remain while the marriage or civil partnership is in existence.

After divorce or dissolution, the non-tenant former spouse has no legal right to remain but the landlord would need to obtain a court order for possession.[6] Where the tenancy is contractual, the landlord would have to serve notice to quit or wait until the end of the fixed term.

For both contractual and statutory tenancies, if the non-tenant partner does not inform the landlord of her/his intention to remain, the landlord may be able to use case 5 to evict her/him.[7] Case 5 applies if the landlord has contracted to re-let or sell the property as a result of the notice being served, and the court decides that s/he would be seriously disadvantaged if possession was not granted. Where possible, therefore, the non-tenant partner should inform the landlord of her/his intention to remain in the property following the notice to quit.

If the sole tenant wishes to end her/his liability for rent, s/he will have to apply for an occupation order under the Family Law Act with attached provisions to transfer the rent obligations. This is because a statutory tenancy continues even after notice to quit if the non-tenant partner continues to live there under matrimonial home rights. Without an order, the tenant can be held liable for rent even after serving notice to quit.

Unless the court has ordered a transfer of liability, a non-tenant partner cannot be held liable for rent or arrears, despite having a right to occupy. However, if s/he accrued rent arrears, the landlord would be able to take possession proceedings against the tenant to end the tenancy for both partners.

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 partner will have no legal rights to remain in occupation. The landlord will need a court order to evict her/him but no grounds need to be proved.[8] 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, s/he may commit an offence.[9]

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 s/he uses physical force to evict.[10] For more details about different types of licences, see the security of tenure section.

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 to a landlord are that:

• it is in writing

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

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

This 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,[11] in which case the information in notice to quit, above, will apply.

Preventing or remedying a tenant's notice to quit

It may be possible for a non-tenant partner or non-tenant former partner to prevent or remedy a tenant's notice to quit.

Setting aside a notice to quit

In one case, it was argued that, where a married sole tenant has given notice, one way to resolve the issue is for the other spouse to apply to the divorce court under section 37 of the Matrimonial Causes Act 1973 to have the notice to quit set aside on the basis that it is a disposal of assets.[12] The House of Lords rejected this possibility.[13]

Preventing service of a notice to quit

Because an application to set aside a notice to quit is unlikely to succeed, it is preferable to try to stop the notice being served. One spouse or civil partner can seek an undertaking from the other not to issue notice until the matrimonial claim is dealt with. If s/he refuses to offer such an undertaking, it is possible to apply for an injunction to prevent disposal of assets.[14] It would normally be necessary to show that it was known that the tenant spouse or civil partner intended to serve notice to quit in order to frustrate a claim to the property by the other spouse or civil partner.

If this intention cannot be shown, or in other situations, the non-tenant partner may want to obtain an injunction as a safeguard against the tenant spouse or civil partner serving notice to quit. However, the injunction may be of limited use. If breached, the tenant and/or the landlord may be held in contempt of court, though that may be of little comfort to the non-tenant partner, as a notice to quit served in such circumstances is a valid notice. [15]

If the non-tenant partner is applying for a tenancy transfer under the Family Law Act, it may be possible for an order to be obtained to prevent the tenant spouse or civil partner from serving a notice to quit to end the tenancy. The same approach may be able to be taken as part of Children Act proceedings for couples with children.

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 s/he was giving up the property and the landlord accepting them. It is possible for an invalid notice to quit to show the requisite intention.[16] Where the tenancy is ended by surrender, the position for the non-tenant partner remaining in occupation will be the same as if a valid notice to quit had been served.

The tenant/licensee spouse or civil partner may leave without doing anything about the tenancy/licence. The situation is different depending on the type of tenancy, but the information applies as long as the matrimonial rights of occupation last (for as long as the marriage or civil partnership is in existence unless the matrimonial rights are extended by the courts).

After the marriage or civil partnership ends, if there is no occupation order, the position is the same as for cohabiting sole tenants.

Secure and introductory tenancies

The non-tenant partner has a right to remain as s/he fulfils the tenancy condition of occupying the property as her/his only or principal home and the tenancy continues.

Assured tenancies

For a fixed-term tenancy, the non-tenant partner has a right to remain as s/he fulfils the condition of occupying the property as her/his only or principal home and the tenancy continues. To evict the non-tenant partner, the landlord would have to serve a notice seeking possession on the tenant and, as it is still within the fixed term, can only use a limited number of possession grounds, mainly those where the tenant is at fault, eg arrears or other breach.[17] There would need to be a clause in the agreement allowing for action to be taken within the fixed term.

For a periodic tenancy, the non-tenant partner has a right to remain and the tenancy continues. The landlord would have to serve notice seeking possession on the tenant and would need to prove one of the specified grounds for possession in order to evict.[18]

Assured shorthold tenancies

The position is the same as for assured tenants except that it will be very easy for the landlord to evict the non-tenant partner once any fixed term ends (or after the first six months for periodic tenancies) by giving two months' notice and obtaining a court order. No grounds for possession need to be proved and the accelerated possession proceedings can usually be used.

Regulated (protected) tenancies

For contractual tenancies, the tenancy will continue as long as the contract is in existence. If the tenant leaves, the non-tenant partner can continue to occupy both by matrimonial rights of occupation and by virtue of the contract still being in existence. The contract can be ended either by the expiry of a fixed term or exercise of a break clause, or, where the tenancy is periodic, by the landlord serving notice to quit or a notice of increase of rent. If the contract is brought to an end, a statutory tenancy arises.

For statutory tenancies, the spouse or civil partner has matrimonial rights of occupation and fulfils the requirement that the tenant occupies the property as her/his residence. The statutory tenancy continues while the marriage exists.

Tenancies with basic protection

Where there is a fixed term, the remaining partner (whether or not still married or in a civil partnership) has a right to remain during the fixed term. Unless there is a break clause, the landlord would have to show that there had been a breach of the tenancy conditions, or wait until the fixed term has expired, to recover possession. No notice to quit is required at the end of the fixed term, but the landlord would have to obtain a court order for possession, although no grounds need to be proved.[19]

Where there is a periodic tenancy, the remaining non-tenant partner can stay while the tenancy continues. The landlord would have to serve notice to quit on the original tenant and obtain a court order for possession, although no grounds for possession are required.[20]

Excluded tenancies

Where there is a contract, the non-tenant partner 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 s/he would be committing a criminal offence by using physical force to gain entry to the property against the wishes of someone inside.[21]

Licences

For some non-licensee partners, the position is the same as for excluded tenants and there is no requirement for the landlord to obtain a court order for possession. Many non-licensee partners, however, may be entitled to 28 days notice in the prescribed form and a court order.[22]

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.

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 Matrimonial Causes Act 1973 and the Family Law Act 1996, a tenancy can be transferred in conjunction with proceedings for divorce, matrimonial separation, dissolution of a civil partnership or nullity (former spouses can also apply up to remarriage). Where there are children and the couple are not divorcing, the 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.[23]

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.

A tenancy can be transferred under the Matrimonial Causes Act 1973 by applying for a property adjustment order in conjunction with divorce, judicial separation, dissolution of a civil partnership or nullity proceedings. This procedure applies to any tenancy that counts as 'property' (it does not apply to statutory protected tenancies that are not interests in land). The tenant is ordered to transfer the tenancy to the other spouse by way of a deed of assignment after the court order. The court's order does not bring about the assignment: the spouses/civil partners must ensure that a deed of assignment is executed or the tenancy will not be legally assigned.[24]

If there is a prohibition against assignment in the tenancy, the court can still order one, although it will create a breach of the tenancy conditions. In such cases, the court may be reluctant to make an order where it would constitute a clear breach of the terms of the tenancy.

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 spouses or civil partners following a court order.

Statutory tenancies under the Rent Act 1977 are not capable of assignment and cannot be transferred under the Matrimonial Causes Act. Other tenancies may have prohibitions against assignment that can complicate matters. The provisions of the Family Law Act grant the courts additional powers to deal with this problem.[25]

The Act allows the courts, during divorce or dissolution proceedings or later, to 'vest' a tenancy in the non-tenant partner, rather than ordering the tenant to transfer it. This applies to secure, protected, statutory, assured or agricultural tenancies.[26] Vesting differs from assignment in that the order of the court effectively brings about the transfer of the tenancy from one spouse or civil partner to another as if it were a conveyance. No deed of assignment is necessary when the court orders the tenancy to be vested in the other spouse or civil partner. The provisions apply only to a tenancy of property that actually was the matrimonial home, and not to a tenancy of property that was only intended to be the matrimonial home.[27]

There are specific criteria as to who gets the tenancy that differ from those laid down by the Matrimonial Causes Act. The court must consider all the circumstances, including:

• the circumstances in which the tenancy was granted

• the respective housing needs and housing resources of the parties

• the respective financial resources of the parties

• the likely effect on the health, safety and wellbeing of the two parties and of any child the respective suitability of the parties as tenants.[28]

Compensation

The Act also allows the court to order the spouse or civil partner to whom the tenancy is transferred to pay compensation to the other.[29] If the court decides to award compensation, it may also direct that:

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

• 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 compensation order 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

• the financial needs and resources of the parties

• the 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, it must give the landlord an opportunity to be heard.[30] The court will take the landlord's view into consideration when deciding whether to order a transfer of the tenancy.

For married couples, the courts have power either to order a transfer or vest the tenancy (when proceedings for divorce, nullity or judicial separation or dissolution or nullity of a civil partnership are taken) at any time. The order cannot take effect before the decree absolute or the decree of nullity or judicial separation is granted, or before the dissolution or nullity of a civil partnership becomes final.

For most tenancies, it is crucial that the matter is dealt with at or before decree absolute or other final order. This is because, while the marriage or civil partnership exists, the non-tenant partner can fulfil any tenant condition and occupy as if s/he were the tenant. After decree absolute, the rights of occupation given by the Family Law Act no longer exist, unless specifically extended beyond decree absolute by the court. Applications for orders extending rights must also be made before decree absolute in order to maintain the status of the tenancy, as without this there will be no tenancy to transfer.

Under the Matrimonial Causes Act/Family Law Act, tenancy transfers can only be made in conjunction with divorce, nullity or judicial review proceedings. Married couples or civil partners with children who are not divorcing may need to use the Children Act provisions instead. Applications can also be made under the Children Act after the marriage or civil partnership has ended, as long as the tenancy is still in existence. Under the Children Act 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.[31]

The tenancy must be a tenancy 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:

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

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

• the 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[32]

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 spouses 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.

Matrimonial Causes 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 her/his liability.[33] 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.[34] 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, unless the landlord has consented to the assignment. A landlord with a possession order will not usually consent to assignment but if s/he/it does, it seems likely that the landlord will need to start new possession proceedings against the new tenant in order to repossess on breach of the existing order.

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 was her/himself an assignee, then when the tenancy is vested in the other spouse or civil partner, s/he will be bound by any agreements that the tenant was bound by, ie agreements which 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 s/he cannot be held responsible for any arrears that accrue after the tenancy has been transferred.[37]

The court may also order that both spouses or civil partners 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, the landlord will need to start new possession proceedings against the new tenant in order to repossess on breach of the existing order.

Children Act

Tenancy transfers under the Children Act are also assignments, so the situation will be the same as for transfers under the Matrimonial Causes Act (see above).