Social Housing v Family Law – Q & A

It is no surprise that Social Housing practitioners are faced with family break-ups and other family law related issues on a regular basis. Separation, divorce, domestic violence, and involvement of social services, for example, can affect tenants on a daily basis. This can often lead to a joint tenant leaving the rented property or being excluded from it. 

We invited John Owens, Partner in MSB’s Family Law team, to answer a few short questions to assist on what actions can be taken in this instance: 

Question 

What is divorce? 

ANSWER: 

Divorce is the process by which parties legally end their marriage.  

Either party can apply for a divorce, separately or jointly. The person to apply is known as the applicant and the other party is known as the respondent. 

The divorce process begins when the applicant issues the divorce application, the respondent acknowledges this application, the applicant can then apply for a Conditional Order of divorce and then, after a period of 6 weeks, for a Final Order. 

The marriage is legally ended once the Court has pronounced the Final Order. 

Question 

What are the grounds for seeking a divorce? 

ANSWER: 

Following the recent change in the law, the only ground for divorce is now that the marriage has “irretrievably broken down”.  

Parties no longer need to rely on any facts to support this, with it being known as a “non-fault divorce”. 

Question 

Can my ex-partner be removed from our joint tenancy? 

ANSWER: 

The simple answer is yes if this decision is reached by agreement. 

A Judge, in financial remedy proceedings, would not have the power to order this, but if the parties agree by consent, this decision can be recorded in the recitals section of the Court Order. 

A Judge has the power under the Family law Act 1996 to order a transfer of a tenancy from one party to another but not to remove a party from a tenancy. The landlord in question would not be a party to the proceedings and therefore could refuse to comply.  

Your landlord may also be willing to remove your ex-partner if your ex-partner agrees to being removed by way of a Deed of Assignment. They will usually only agree to do this if the rent account is clear and there is no legal action pending. 

If your ex-partner does not consent to be removed from the tenancy, you could end the tenancy by way of a Notice to Quit if your landlord is agreeable to grant a new tenancy for the property in your sole name. 

Question 

What if my ex-partner has been violent towards me? Can I make them leave the property? 

ANSWER: 

Yes, the Court has the power to make orders to protect vulnerable clients in circumstances like this. 

The court has the power under the Family Law Act 1996, to make either Occupation Orders, which would remove a violent party from a property, or Non-Molestation Orders, which would often have the same effect.  

Your landlord should also have a Domestic Violence policy so may be able to offer you assistance with a move yourself or may be able to apply for an Injunction pursuant to the Anti-Social Behaviour Crime and Policing Act to exclude them from the property. 

Question 

What happens if I leave the rented property and my ex-partner stays living there? Will I still need to pay the rent? 

ANSWER: 

If you remain named on the tenancy agreement, then you will remain jointly liable for the rent. This is much the same as circumstances where parties have obtained a joint mortgage. Both parties are jointly and severally liable for the debt and monthly repayments.  

You should speak to your landlord to see if you can be removed from the tenancy agreement.  You could also serve a Notice to Quit to end the tenancy but that would also end the tenancy on behalf of your ex-partner. 

John Owens is a Partner based in our Manchester office and can be contacted via email at Johnowens@msbsolicitors.co.uk and via telephone at 0151 281 9040.