Relationship breakdown law for spouses and civil partners in a sole tenancy

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 Marriage (Same Sex Couples) Act 2013 extended the right to marry to same sex couples and the The Civil Partnership (Opposite-sex Couples) Regulations 2019 extended the provisions of the Civil Partnership Act 2004 to opposite sex couples.

The Family Law Act 1996 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 couples and civil partners where one of them is a sole tenant or sole licensee 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.

A sole tenancy means that one person only is the tenant or licensee of the property, even though other people may be living there. In this section, 'non-tenant partner' is used for the married or civil partner who is not the tenant of the matrimonial home, and 'non-licensee partner' for the married or civil partner who is not the licensee of the matrimonial home.

Where a couple are married or in a civil partnership and the property is in one name only, both partners have legal rights to occupy the matrimonial home regardless of who is the tenant or licensee.

The tenant's/licensee's right of occupation arises because they have a contractual or statutory right to occupy from housing law. This will continue for the duration of the tenancy/licence unless it is ended by the tenant's/licensee's own actions, the actions of the landlord, or by a court order under matrimonial law.

The non-tenant/non-licensee partner has the right to occupy because they have home rights under family law. These rights will continue until the marriage/civil partnership or the tenancy/licence ends unless extended by the courts (by an occupation order).[1] In a case where there was a joint tenancy between the husband and his mother, it was held that the matrimonial right to occupy of the wife could not be terminated by the mother even though she was a joint tenant.[2]

Matrimonial (and civil partnership) home rights

The non-tenant/non-licensee partner (with the exception of non-contractual (bare) licensees) has the right:

• to occupy the matrimonial home and not to be excluded, except by court order

• if not occupying the home, to obtain a court order to regain entry and to live there

• to occupy the home as if they were the tenant/licensee

• to pay rent or other outgoings that are to be treated as if paid by the tenant/licensee (this gives a right to pay rent but does not mean that the non-tenant/non-licensee partner can be held legally liable for the tenant's/licensee's arrears, unless a court order has been made under schedule 7 of the Family Law Act 1996 transferring liability)

In many types of tenancy it is necessary for the tenant to be resident in the property in order for the tenancy to retain protection.

The right of the non-tenant partner to occupy the home as if they were the tenant prevents this provision leading to loss of security where the tenant moves out.[3] If it is a statutory protected tenancy under the Rent Act 1977 or the Rent (Agriculture) Act 1976, which requires the tenant to 'occupy the property as a residence', occupation as a residence by the non-tenant partner will be treated as satisfying this condition. If it is a secure tenancy under the Housing Act 1985 or an assured tenancy under the Housing Act 1988, which requires the tenant to 'occupy the dwelling as her/his only or principal home', occupation as an only or principal home by the non-tenant partner will be treated as satisfying this condition.

As long as the tenancy continues (ie it has not been ended by the tenant), then even if the tenant leaves, the landlord cannot evict the non-tenant partner unless they would have had the right to claim possession against the tenant. The landlord will have to use the normal procedure to evict the non-tenant partner that they would have had to use to evict the tenant. For example, if the tenant is an assured tenant, the landlord will have to prove one of the grounds for possession, such as rent arrears. In all cases, the landlord must take any possession action against the tenant, not the non-tenant partner.

Agricultural licences under the Rent (Agriculture) Act 1976 or the Housing Act 1988 and secure licences under the Housing Act 1985 have the same residence requirements as above. Occupation by the non-licensee partner, therefore, avoids any loss of security in the same way.[4]