If you and your partner have been living together in rented accommodation but have chosen to separate you will need to consider what should happen to your tenancy.
Under the Family Law Act 1996 the Court has the power to transfer a tenancy which means that the ownership of a tenancy is transferred from one person or persons to another.
If a tenancy is in the name of one party (a sole tenancy) it can be transferred to the other party’s name.
If the tenancy is in both parties’ names (a joint tenancy) it can be transferred into one party’s name.
Provided that the tenancy relates to a property which is or was the family home, the following types of tenancies can be transferred:
• Secure tenancies
• Flexible tenancies
• Introductory tenancies
• Assured tenancies
• Assured shorthold tenancies
• Protected and statutory tenancies under the Rent Act 1977
• Agricultural tenancies.
When considering an application for a transfer of tenancy, the Court must have regard to all the circumstances of the case, including how the tenancy was granted , the housing needs and housing resources of each of you and any children and your financial resources. The Court will also consider the likely effect of any Order on each of you and of any children.
Landlords must be notified when an application is made because the Court must take into account their views in making their decision. However, the Court can still transfer the tenancy even where the landlord objects.
If the Court makes an Order for a Transfer of Tenancy no other legal documents are required. The Order brings about the transfer and the tenancy is said to ‘vest’ in the new tenant on the date stated in the Court Order.