Guide

Your home after separation: renting

Last updated: 6 June 2017

If you live together

If you and your partner are cohabiting (living together as a couple) and want to separate, your options depend on:

  • your tenancy agreement
  • whether you rent from a private or social landlord (housing association, housing cooperative or local council)

Your rights to your home

If your name is on the tenancy agreement either as a sole or joint tenant, you have the right to live in the property for as long as your tenancy lasts. This is called your 'occupancy rights'.

If your name isn't on the tenancy agreement you won't automatically have occupancy rights, even if you have children. This means you won't have a right to live in your home if your ex-partner wants you to leave.

You can ask the court to grant you occupancy rights so that:

  • you'll have the right to live in the home as if you were the tenant (this means you're entitled to pay rent, ask for repairs or make home improvements)
  • your children and grandchildren will also have the right to live there with you
  • you have the right to stay living there if your ex-partner moves out
  • your ex-partner can't sublet the property without your permission
  • you can't be evicted without a court order
  • if you move out, you have the right to move back in again

If your ex-partner moves out

If you're joint tenants, your landlord can't evict you without a court order if your ex-partner moves out.

If your name isn't on the tenancy agreement and you don't have occupancy rights, you don't have a right to stay in your home if your ex-partner moves out.

If you have been granted occupancy rights, you can stay in your home for as long as your rights last. If the landlord wants you to leave, they'll need to go through the official procedure for council and housing association tenant evictions or private tenant evictions.

During this time you can ask your landlord to transfer the tenancy to your name.

If you want to stay in the property you'll need to keep paying the rent, even if your ex-partner isn't paying their share. Find help if you can't afford to pay your rent.

If your ex-partner wants to end the tenancy

If you're joint tenants, your ex-partner needs your written permission to end the tenancy.

If you rent from a social landlord, your ex-partner will also need to give them 4 weeks' notice unless the landlord has given their written agreement to end the tenancy sooner.

If your ex-partner is the tenant, they can end the tenancy without your permission. If you have occupancy rights you can ask the court to stop them doing this.

If your ex-partner wants you to move out

If your name is on the tenancy agreement or you have been granted occupancy rights, you ex-partner will need a court order if they want you to leave.

If your ex-partner tries to force you out, this is an illegal eviction and you can report this to the police. You might also be able to get an interdict or non-harassment order to prevent them acting this way.

If your name isn't on the tenancy agreement and you don't have occupancy rights, your ex-partner will be able to evict you without a court order as long as they give you reasonable notice.

If you don't want to leave, you'll need to apply for occupancy rights.

Dividing your home

When deciding what happens with your home after you and your ex-partner split up, you should try to agree on as much as you can without asking the court to decide (which can be expensive).

However, you may still need advice and help so you understand your rights and options for dividing the family home.

If you reach an agreement between you, you can get a separation agreement drawn up so your decision is legally binding.

If you can't agree on what should happen to your home, you could consider mediation to help you come to a mutual decision. If you still can't agree, you may have to ask the court to decide. You may be able to get legal aid if you can't afford your legal costs.

If the tenancy is in your name

If the tenancy is in your name you can ask your ex-partner to leave, although they may be able to get a court order to get the right to stay there.

If you decide to leave and agree to your ex-partner staying, you'll need to formally end your tenancy so your ex-partner can take up a new one.

If you rent from a social landlord you'll need to check with them that you have the right to sign over your tenancy to your ex-partner.

Make sure you make any request to sign over your tenancy to your landlord in writing. You should also get written agreement from your landlord to end your interest in the tenancy. Otherwise your landlord may believe you have abandoned the tenancy and ask you to pay rent after you move out.

If you rent from a social landlord (housing association, housing cooperative or local council) you'll need to check with them that you have the right to sign over your tenancy to your ex-partner.

If you're both on the tenancy agreement

If both of your names are on the tenancy agreement, both of you are responsible for paying rent until your tenancy ends. You could:

  • agree that one person moves out and the tenancy is signed over to the other person
  • both move out
  • apply for a court order if don't agree and one of you wants to stay

You might be able to sign over the tenancy to your ex-partner, but you'll need to speak to your landlord about this.

If the tenancy isn't in your name

You won't have long term rights to stay in your home if your name isn't on the tenancy agreement. You might be able to:

If your ex-partner wants to move out and is happy for you to stay, speak to your landlord. They may agree to this as long as you can pay the rent.

Ending your tenancy early

If you have started a fixed-term tenancy with a landlord you might not be able to end it early. Talk to your landlord to see what your options are.

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Your home after separation: renting
If you live together