Sorting Out What Happens to a Rental Property in a Divorce

Posted onMay 24, 2023

When you are getting divorced there is a lot to think about; the children and their living and contact arrangements, and how the family will cope emotionally and financially.

When you rent the family home from a private landlord or through social housing you also need to consider what will happen with the rental property. It is best that you do not permanently leave the property or make any hasty decisions about the rental property until you have spoken to a family law solicitor.

Online and London Family Law Solicitors

For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

Rental property – your options when you separate or get divorced

If you are renting a property and going through a separation or divorce it is best to carefully consider all your options before you let your landlord know about the separation. You need legal advice so you understand both your family law options and your housing law rights as a tenant or occupant of the rental property.

You should not feel pressurised to leave the property by either your ex-partner or the landlord until you have had a chance to take legal advice. If you are at risk of domestic abuse, you may be able to apply to the family court for an injunction order against your former partner. An injunction order can be made to prevent domestic abuse (a non-molestation order) or to allow you to stay in the rental property (an occupation order) until you have reached an agreement or the court has decided who gets to stay in the property.

Many people are influenced in their decision-making about whether to leave a rental property quickly or not by whether they can afford to pay the rent on their own. However, a family law solicitor can advise you on whether you can obtain child support or make a claim against your estranged husband, wife, or civil partner for spousal maintenance to help you pay your rent. Family lawyers stress that it is important to have all the information you need to make an informed decision before you elect to stay or leave a rental property, especially when it can be hard to find a property that is available to rent in London in your preferred area and budget.

Splitting up and rental property

When it comes to rental property, your family law solicitor will need to know if you are the sole tenant or a joint tenant or if you are living in a property rented in the sole name of your estranged partner. Information will also be needed about the type of tenancy agreement and the landlord. For example, is the tenancy an assured shorthold tenancy? Is the landlord a private landlord, a member of your extended family, or your partner’s family, or is the property rented from a social landlord, such as a housing association or charity?

These questions are important as things can get complicated if your landlord is your former father-in-law or if the property is a council-owned property that you and your ex-partner are both keen to stay in because of the housing security renting from the local authority provides in comparison to renting from a private landlord.

Divorce and tenancy agreement options

Divorce and tenancy agreement options cannot be looked at in isolation. For example, if you are ordered to pay child support and spousal maintenance it may make it hard to stay at the rental property because you need to reduce your rent to afford your extra expenditure. For example, if you are caring for young children you may need to look at your job options and the eligibility criteria for tax credits as well as speak to a family law solicitor about whether you will get spousal maintenance (and, if so, how much and for how long) and child support.

Once you know the extent of the assets and any debt, and you have a clearer idea about whether you will get or have to pay spousal maintenance or child support then you can consider your rental property options including:

Ending the tenancy – you may not be able to immediately end the tenancy agreement as this option depends on whether the agreement allows you to end the tenancy agreement early or if the landlord is prepared to voluntarily agree to end the tenancy. If the tenancy is a joint tenancy agreement, then even if you move out you will still be liable to the landlord for arrears of rent if your ex-partner does not pay the rent even though they are continuing to live at the property
Transferring the tenancy from a joint tenancy agreement – a landlord may not want to agree to transfer the tenancy agreement from joint names if the landlord is concerned that a sole income is likely to increase the risk of rent arrears. Family law solicitors say that is one of the reasons why it is best to approach a landlord once you have sorted out payments such as child support or spousal maintenance or once you have arranged for a parent to stand as guarantor for the rental payments
Transferring a sole tenancy to the other partner – it may be that you or your ex-partner is not named on the tenancy agreement but you are the one (or they are) who wants to stay at the rental property. That might suit the landlord or they may not want to change the tenancy agreement. If the agreement is not changed the person whose name is on the tenancy agreement will remain liable to the landlord for the rent even if they move out

At OTS Solicitors we have specialist lawyers in family law disputes as well as landlord and tenant solicitors so we can give you the comprehensive family and housing law advice that you need when you are separating from a husband or wife or civil partner and your family home is a rental property.

Online and London Family Law Solicitors

For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

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