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 contract-holder and you leave with no obvious intention to return, the landlord may be able to end the contract quite easily. See more in our pages about 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 contract-holder 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 contract-holder or owner, but want to stay in the home, you may want to check that you can stop your partner from ending the renting agreement (known as an ‘occupation contract’) 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 contrct-holder (either joint or sole) or if you are married to or in a civil partnership with the owner or contract-holder (ie you have home rights). If it is just your partner who is liable for the rent or mortgage (eg they are the sole contract-holder 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 contract-holder, 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 contract-holder
If you are the owner or contract-holder, you are liable for the rent or mortgage payments. If you are a joint contract-holder or owner and the other joint contract-holder 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 contract-holder
If you are not married or in a civil partnership and are not an owner or contract-holder 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 Universal credit, 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 contract-holder from ending the occupation contract, 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 Universal Credit, 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.
If you are a joint contract-holder with any type of standard or secure occupation contract, your contract cannot be ended by another joint contract-holder giving notice.
However, if you have a different kind of renting agreement you should take steps to protect your position and prevent the tenancy or licence being ended by your partner. This can include applying for an injunction to prevent another joint tenant from serving a notice to end the tenancy or licence (this is called a ‘Notice to Quit’ if you have a common law tenancy). The application can be made in various ways, including making an application when you apply for a divorce or dissolution of a civil partnership, or when an application is made for the benefit of your children. If you need to do this, you will need to get advice from a solicitor specialising in family law.
Exclusion of a joint contract-holder
If you are a joint contract-holder and have left your home following a relationship breakdown, you may want to consider whether you intend to return. If you have left because you are at risk of domestic abuse then the council should take a homelessness application from you. Visit our advice page about domestic abuse and homelessness to find out more.
If you are a joint contract-holder and have left home but you intend to return, it is best to inform the remaining joint contract-holder of your intention to return. If the person remaining in the property has no reason to believe that you intend to return, they may be able to apply to the county court to have your name removed from the contract. This is called ‘exclusion of a joint contract-holder’.
Before an application to the court can be made, they must give you a ‘warning notice’. This notice must be in writing and give 4 weeks before an application to court is made. The landlord must also be given a copy of the notice. During the 4 week period the person remaining at the home must make reasonable enquiries about whether you intend to return.
The court might decide not to make an order to remove you from the contract if you left the home due to your partner’s antisocial behaviour.
If the court makes an order to remove your name from the contract, you may be able to appeal this if:
- you did not receive a ‘warning notice’
- you had a good reason for not responding to a warning notice
- your partner did not have reason to believe you didn’t intend to return
You must appeal within 6 months of the court making the order. If your appeal is successful the court may decide to reinstate you as a joint contract-holder, or make another kind of order if appropriate.
I am married or in a civil partnership (and am not a contract-holder)
If you are married or in a civil partnership with someone who is a contract-holder, 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 contract-holder.
If your spouse/civil partner is the contract-holder, and they have a secure or standard occupation contract or regulated tenancy, the agreement will continue unless they give a valid notice to the landlord to end the agreement. If you have home rights, and your partner wants to end the agreement, there may be action you can take to stop them.
If your partner has a periodic standard contract, bear in mind that the landlord can end the contract by serving six months’ notice, and does not need to have a reason for doing so. Because a periodic standard contract-holder with a private landlord 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 contract-holder)
If your partner was the sole contract-holder and they leave, this will usually end the contract 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 contract 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 renting agreement will last as long as the order does. This would give you enough time to apply for the contract to be transferred into your name.
This course of action may be worthwhile if you have a more secure type of renting agreement, such as a secure contract or regulated tenancy. If your home is let by a private landlord, however, you may be advised that it isn’t worth fighting for in court, as the landlord will probably be able to evict you much more easily. It may be enough to talk to your landlord, explain the situation, and ask if they can grant a new contract 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 can also read Gov.UK’s step-by-step guide to Staying in your partner’s property during a divorce or separation.
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.