If you want to stay in the home
You can only stay in the home if you have a legal right to do so. Your legal rights depend on your relationship status, whether you are a joint or sole tenant or owner, or whether you can enforce any rights you might have through the court.
I’m a sole tenant or owner
A sole tenant or owner means there is just one person’s name on the tenancy agreement or house deeds. If it is just your name, you have the right to stay in the home, unless you’ve been excluded by an occupation order. If you want your partner to stay in the home instead of you, you may be able to have a sole tenancy transferred into their name, or, if you are a sole owner, have the mortgage transferred and the house deeds changed.
If you are a sole tenant but you are married or in a registered civil partnership, and you can’t decide who will remain in the home, you will have to ask the courts to decide.
I’m a joint tenant or owner
If you are a joint tenant or owner, you both have the right to stay in the home unless one person has been excluded using an occupation order. If you can’t decide who is going to stay, an occupation order may be your only option to force your partner out of the home.
If you are at risk of violence or abuse in your home then the council’s homelessness department should offer help to you. See our pages on homelessness for more information.
If you are a joint tenant living in a council or housing association home, and either you or your partner gives notice to end the tenancy by giving four weeks’ notice, the tenancy will be brought to an end. The council will then need to look into whether the property will be under or over-occupied for whoever wants to stay. The tenancy will then usually be re-offered to the person staying, if the accommodation is suitable for them. If the council believes the person staying is under-occupying – ie the property is too big for them – they will usually be made to leave.
I’m married or in a civil partnership
If you are married or in a registered civil partnership with someone who is the owner or tenant, you will have home rights. Having home rights means you can stay in the home. Unless either you or your partner have been excluded using an occupation order, you will both have the right to stay in the home. However, if you can’t decide on who is going to stay in the home in the short term, you may be able to apply for an occupation order to enforce your short-term rights to stay or return to the home, or to keep your partner out. If you can’t decide who will stay in the home in the long term, then you may have to ask the courts to decide.
I am none of the above, but want to stay in the home
If you’re not a sole owner or joint owner of your home, you may be able to stay if you can prove you have a beneficial interest in the home. Having a ‘beneficial interest’ means you have made some sort of contribution (usually financial) to the home. You may have to prove this in court. You’ll usually be able to establish that you have a beneficial interest in the home if you are married to or have a registered civil partnership with someone who is the sole owner.
Where there’s a dispute between parents over who stays in the home, the court will always favour the parent who will be living with the children. Where both parents will be living with children and one parent wants to remain in the home, the local council will consider whether it has a duty to rehouse the other parent and their children, provided it accepts that it is unreasonable for both parents to live together.