If you’re getting divorced and you rent your home with someone who would rather sell, it can seem like there aren’t many alternative options to pursue. You may want to stay in your home for ease, proximity to work, proximity to your children’s school or to be close to friends and/or family. Whatever the reason, you have various rights depending on your rent or lease agreement.
Sole Tenancy in Your Name
If the tenancy agreement is in your name, then you definitely have the right to stay in your home and you can take on full responsibility for rent payments. However, if your ex was helping you make payments, it is important to consider whether you can do this alone. If not, your landlord may try to evict you. If you are on low income or if the effects of the divorce are going to seriously diminish your savings, you may be allowed a Housing Benefit which will help pay towards your rent (and in some cases all of it). Jobcentre Plus will be able to tell you if you can claim.
If you are currently renting as a joint tenant with your ex, you still have the right to live in that home, although so does your ex. You both also have the right to tell your landlord to end the tenancy agreement at any point, meaning that if your ex wants to sell, he/she may try to do so. Thus, you must talk to your ex about taking over the agreement- so that you can do so after the tenancy finishes or the marriage ends. Ask your landlord about whether they would be open to this. Remember though that if you have rent arrears (outstanding property debt) this will be taken into consideration and either you or your ex will need to clear them before a new agreement can be reached.
Sole Tenancy in Their Name
If the tenancy agreement is in your ex’s name, then they are currently responsible for paying rent. Whilst you are still married, you can continue living in your home due to ‘Home Rights’. Home Rights allow the non-paying spouse the rights of occupation as the matrimonial home is considered a joint asset between you and your ex. Thus, so long as you register your matrimonial home rights through the Land Registry, you can stop your ex selling the tenancy/house without your approval whilst you are married. If you don’t register, then legally, your ex could sell the house without your knowledge. Worse still, you could be evicted. See our post, ‘My ex was paying the mortgage and wants to sell. What are my options?’ for more details regarding Home Rights and how to register for them.
After divorce, your ex might be able to sign the tenancy over to you, (called a tenancy assignment) and thus you could take over paying the rent. Check your tenancy agreement for any mention of assignment as not all agreements include this. For guarantee of payment, your landlord may ask for personal references who must promise to make your rent payments if you don’t, and to further determine your trustworthiness. These are usually family members, although finding people to do this can sometimes prove difficult.
It’s also important to note that if your name isn’t on the tenancy agreement, your landlord may not accept rent from you, especially if your ex moves out. Technically, if you take over the rent agreement, you have begun a new tenancy and the landlord does not have to agree to this. A tenancy assignment could be the solution, but again the landlord does not have to approve it. If your landlord does not agree to let you stay, they could take possession proceedings out against you, which could result in a forced eviction. You may be able to enforce your Home Rights by going to court, which the landlord must then accept from you. Alternatively, you could get an occupation order, which would give you the rights to make rent payments but not take on full liability. Whatever you decide, ensure you assess your options carefully and thoroughly to benefit your best interests. Contacting an advice charity such as Citizens Advice or Shelter can further help, as they give advice on how to negotiate with landlords. They also provide great information on site:
If in the unfortunate circumstance your ex decides to end the tenancy and your landlord refuses to let you stay, you may have to register as homeless if you have nowhere else to stay. Your local housing authority may give you some help with temporary stay if they deem you are entitled to it. This is clearly an unwanted situation, so taking all possible steps to prevent this happening is advised.
If You Still Can’t Come To An Agreement
Where you and your ex can’t come to an agreement about what to with your home, a mediator may help you and your ex reach a decision. You can find mediators on the Family Mediation Council and National Family Mediation websites. Alternatively, (of if a suitable decision can’t be reached) a court visit may be necessary to secure the rights to your home for a certain length of time or to strengthen your rights to remain there. Talking to your landlord beforehand is always advised to save you legal costs, solve disputes and hopefully come to an acceptable and agreeable solution.
Renting and divorce can be a difficult combination, especially when conflicting beliefs concerning how to move forward are involved. Talking through your desired outcome with your ex and landlord can help reach an agreement that will hopefully satisfy everyone involved.Back to all articles