Tenancy Agreements on Separation

What happens to your tenancy agreement on separation?

MOVING OUT OR STAYING IN THE PROPERTY?

If you both intend to move out of your rented property, you will need to give notice as set out in your Tenancy Agreement. For help in identifying what type of Tenancy you have and the applicable notice period: https://www.citizensadvice.org.uk/housing/renting-privately/ending-your-tenancy/ending-your-tenancy/

In most tenancy agreements, you are both individually liable for the rent, and bound to ensure the entire sum is paid until the end of the tenancy. This means that if your rent is not covered, even by just one of you, the landlord could bring proceedings against either of you for the full amount.

It is best to give notice as soon as possible. You should always give notice in writing, with a letter that clearly states the date you'll be moving out. Keep a copy of your letter and get a proof of posting certificate from the post office, in case you need to prove when you posted it.

You might find the notice period is long, or you are still within a period where you are not allowed to give notice. In that case it may be worth speaking with your landlord as he or she may agree to you finding new tenants to take your place, or they may agree to release you early. If you do agree this, you should ask your landlord to confirm it in writing.

You both have a right to live in the property until the end of the notice period.

What if one person wants to stay in the property and you both agree?
If you and your ex-partner agree that one of you will remain living in your rented property either with a new flatmate or alone, you will need to get permission from your landlord.

Your landlord then needs to end the joint tenancy agreement and start a new one with the person who stays (and their new flatmate if they have one). You both must continue to pay your share of the rent and other expenses until you are released from your Tenancy Agreement by your landlord.

If your landlord refuses to change the contract you can apply for a ‘transfer of tenancy’. This is a court order that can change your ex-partner’s tenancy to your name, or remove their name from a joint tenancy. However, you should seek advice before embarking on this as the legal costs involved may mean that it is not worth making the application.

For further information you can go to the Citizens Advice Bureau:

https://www.citizensadvice.org.uk/family/ending-a-relationship/if-you-were-living-together/what-happens-to-your-home-when-you-separate/

What if one person wants to stay in the property but the other doesn’t agree?

If one person gives notice, it ends the Tenancy Agreement for everyone. If your ex- partner gives notice and you wish to remain in the property you will need to speak to your landlord separately about entering into a new Tenancy Agreement after the current one ends.

It is technically possible to apply to the Court for an injunction to prevent your ex-partner from giving notice but these sorts of legal proceedings are expensive and are unlikely to be worth it for the possible outcome.

COURT PROCEDURE TO KEEP LIVING IN THE FAMILY HOME

An occupation order manages who can live in the family home.

In ordinary circumstances, both of you have the right to remain living in the matrimonial home until your financial claims against one another are resolved. However, in certain circumstances, one of the parties can apply for an Occupation Order. If the order is granted the court can:

  • Exclude one party from the family home, even if they are a joint owner.

  • Regulate the occupation of the home by either or both of the parties, which means it can set times when you or your spouse (or both of you) can use the property and limit which parts of the home they can use.

  • Exclude a party from the entire home and an area around it. For example, the non- resident ex-partner is not allowed within 100 metres of the property.

  • For an application to be successful it must be against a respondent who is an ‘associated person’.

  • Associated persons are:

  • Someone to whom you are or have been married

  • Someone with whom you have or have had a civil partnership

  • Someone you have lived with as though you were married

  • Someone to whom you are or have been engaged (if the engagement has been terminated, the application must be within three years of the termination)

  • Someone who has lived in the same household as you, except an employee, tenant, lodger or boarder

  • Certain relations

  • Someone with whom you have had a personal intimate relationship for a significant amount of time

  • Someone who is the other parent of your child or who has parental responsibility for your child.

The first thing you’ll need to do is fill in the application form. You can see a copy and download the form here:

https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=1117

The form asks for:

  • Your name, address and date of birth. If you do not wish to reveal any contact details, complete Form C8: https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2216

  • The name and address of the person you are seeking the order against, the ‘respondent’.

  • If there are already family proceedings involving you and the other person, the name of the court and the case numbers, if known, and the type of case (for example, an application for residence of a child).

  • If there are criminal proceedings and the other person was arrested and charged, the name of the criminal court and case number if known, and the date of the hearing or trial.

  • If you are applying for an occupation order, in which you are asking the court to consider changing a rental or mortgage agreement, a copy of the agreement may help the court.

You’ll also need to write out a ‘witness statement’ and attach it to the form. This is your chance to explain what has happened and why you need the occupation order. Sign and date your witness statement and write ‘I believe that the facts stated in this witness statement are true’ at the bottom.

Send 3 copies of your application with copies of your witness statement attached to your nearest court.

You can find your local court at https://courttribunalfinder.service.gov.uk/search/

They will arrange for a copy to be sent to your ex-partner. They will ask them to write their own witness statement.

The court will get in touch with a date for the court hearing. If you’re worried about being in court with your ex-partner, you can ask to have the hearing in separate rooms.

The court applies two tests to decide whether to grant the order:

a) The balance of harm test – the court must make an order if it appears that the applicant or any relevant child is likely to suffer significant harm at the hand of the respondent if an order is not made.

There are however exceptions to this test. If it appears that the respondent or any relevant child is likely to suffer significant harm if the order is made; or the harm likely to be suffered by them is as great as, or greater than, the harm likely to be suffered by the applicant or child if the order is not made.

In cases where it can be established that there is a significant risk to a child, the interests of the child will be the court’s main consideration.

b) The core criteria test – the court can grant an occupation order having considered circumstances such as the below:

  1. the housing needs and resources of each of the parties and of any relevant child;

  2. the financial resources of each of the parties;

  3. the likely effect of any order, or of any decision by the court not to grant the order on the health, safety or well-being of the parties and of any relevant child; and

  4. the conduct of the parties in relation to each other and otherwise.

IN CASE OF EMERGENCY

You can apply for an emergency order to be made. In section 3 of the form there is a box you can tick to flag the order as an emergency. If you ask for an emergency order you will need to explain in your witness statement that your ex-partner is likely to:

  • deliberately avoid or ignore the occupation order

  • physically harm you or your children; or

  • stop you from applying if you wait longer.

Your hearing will be held at your nearest family court. At the end of the hearing, the court will either decide:

  • that your ex-partner must promise to do or not do something - for example let you stay in the home

  • that they need more information – you might get a short-term order to protect you until you provide this information

  • to issue an occupation order.

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