Why protect your rights to return?
If you want to stay in or return to the home, you should think about protecting any interests you might have in it. What you can do depends on what rights you have to the home.
If you are planning to leave the home, you should find out the consequences of leaving before you go. For example, if you are a sole tenant and you leave with no obvious intention to return, you are risking eviction. If you want to leave your home, but think you may want to return to it later, you should try to protect your interests in it.
You can protect the home by keeping up the rent or mortgage payments on it. Whether you will be able to make these payments depends on whether you are the tenant or owner, or whether you have home rights and can afford the rent or mortgage. If you don’t have home rights and are not the tenant or owner, but want to stay in the home, you may want to see if you can stop your partner from ending the tenancy or selling the home (see below).
Paying the rent or mortgage
You will be liable for the rent or mortgage payments if you are an owner or tenant (either joint or sole) or if you are married to or in a civil partnership with the owner or tenant (ie you have home rights). If it is just your partner who is liable for the rent or mortgage (eg they are the sole tenant or owner and you are cohabiting), and they leave, you may want to try to establish the right to make rent or mortgage payments if you want to stay in the property.
I am married or in a civil partnership
Even if you are not the owner or tenant, if you are married or in a civil partnership you have home rights, and you will have a right to pay the rent or mortgage. If your spouse or civil partner has built up rent arrears, however, or goes on to build up rent arrears in the future, you will not necessarily be held liable for these.
I am the owner or tenant
If you are the owner or tenant, you are liable for the rent or mortgage payments. If you are a joint tenant or owner and the other joint tenant or owner leaves, you will be liable to make the payments without them.
I am living with someone (eg. cohabiting, but am not an owner or tenant)
If you are not married or in a civil partnership and are not an owner or tenant then you have no right to pay the rent or mortgage. If you want to stay in the property, you can apply for an occupation order, which will give you home rights for as long as the order lasts. Home rights will mean you can pay the rent or mortgage. If you do become liable for the rent or mortgage, you can also apply for Housing Benefit or, if you’re on Income Support or income-based Jobseekers Allowance Employment Support Allowance, or Pension Credit you can apply for Support for Mortgage Interest payments (SMI) to help cover the costs. However, you will not necessarily be able to prevent the tenant from ending the tenancy, or prevent the owner from selling the property.
Help with housing costs
If you decide to stay in the home and your partner leaves, you may be able to claim Housing Benefit to help you pay the rent, or if you’re on Income Support, income-based Jobseekers Allowance, Employment Support Allowance, or Pension Credit and you own your own home, Income Support Mortgage Interest. For more information on these, visit the Department for Work and Pensions website or ask at your local benefits office.
Stopping your tenancy from ending
If your partner is a tenant, but wants to end the tenancy, what you can do to prevent this will depend on your relationship status, and/or whether you’re a joint tenant.
It only takes one joint tenant to give a valid notice to your landlord telling them that they want to end the tenancy. Therefore if you want to keep your tenancy, and you suspect that your partner is going to end it, it is essential that you let your landlord know immediately that you would like to stay on. Your landlord is not obliged to let you stay on, and local authorities usually have a policy regarding the grant of a new tenancy in cases of relationship breakdown. If you think your landlord may not grant you a new tenancy, you should seek urgent legal advice from Shelter Cymru or a family law solicitor. They may be able to help you apply to court for an order preventing your partner from serving a notice to end the tenancy, and to request that the tenancy is transferred into your sole name.
I am married or in a civil partnership (and am not a tenant)
If you are married or in a civil partnership with someone who is a tenant, you have home rights. ‘Home rights’ is a legal term that generally means that you can live in your home as if you were the tenant.
If your spouse/civil partner is the tenant, their tenancy is secure, assured or regulated and they leave, the tenancy will continue unless they give a valid notice to quit to the landlord. If you have home rights, and your partner wants to end the tenancy, there may be action you can take to stop them.
If your partner’s tenancy is an assured shorthold, bear in mind that the landlord can end it by serving two months’ notice, and does not need to have a reason for doing so. Because an assured shorthold tenancy offers little security, it’s sensible to talk to the landlord about whether they will let you stay on before deciding whether to apply for home rights.
I am cohabiting (and am not a tenant)
If your partner was the sole tenant and they leave, this will usually end the tenancy and you will have no rights to stay in the property. This can be prevented, however, if you get an occupation order from the court before your partner leaves. If you suspect your partner wants to end the tenancy and you’d like to stay in the home, see a family law solicitor immediately – they can advise you if an occupation order is the best course of action. If the court grants you an occupation order, then most types of tenancy will last as long as the order does. This would give you enough time to apply for the tenancy to be transferred into your name.
This course of action may be worthwhile if you have a more secure type of tenancy, such as an assured tenancy or a secure tenancy. If you’re a private tenant, however, you may be advised that it isn’t worth fighting for, as the landlord can evict you much more easily. If you’re in a private tenancy which you’d like to keep it may be enough to talk to your landlord, explain the situation, and ask if they can grant a new tenancy in your name.
Stopping the sale or remortgage of the home
Whether you can stop the sale or remortgage of the home will depend on whether you’re a joint owner and/or your relationship status.
If you are a joint owner, then both joint owners need to give their permission before a sale can go ahead. If you cannot agree whether the home should be sold, a sale can be ordered by the courts.
I am married or in a civil partnership (but not an owner)
If you are married to or in a civil partnership with the owner of the home, you can prevent a sale or remortgage by registering your home rights. You can do this by applying for a notice at the Land Registry if the property is registered, or by applying for a land charge to be registered on the Land Charges Register if the property is not registered with the Land Registry. You can contact the Land Registry for more information about this, or click here for an online guide. You may also wish to obtain advice from a family law solicitor. If you want to stay in the home and you don’t move out, it will make it very difficult for the owner to sell, as you have the right to remain in the property even after it’s sold.
I am a cohabitant (but not an owner)
If you are not married or in a civil partnership with the owner, you may be able to prevent the sale of a property by establishing a beneficial interest. You are likely to have a beneficial interest if the owner of the home is also a parent of any children you might have or you have been contributing to the mortgage. To establish beneficial interest, you will need the help of a solicitor. If you cannot prove that you have a beneficial interest, then you have no automatic right to the home but you may be able to obtain an occupation order from the court.