Occupancy rights if you rent your home
If you are separating from your partner, your rights to remain in or return to your rented home or to make your partner leave will depend on whether or not you are married or in civil partnership and whose name is on the tenancy agreement. This page explains how to work out what your rights are.
What kind of tenants does this information apply to?
This information applies to most types of tenant, including Scottish secure, assured, regulated and common law tenants. If you're unsure about your tenancy status and how this affects your rights, you can ask an adviser at a Shelter advice centre or Citizens Advice.
How do I know what my rights are?
If you rent with your partner and your relationship breaks down, your rights to stay in the family home will depend on:
- whose name is on the tenancy agreement
- whether or not you and your partner are married or have registered a civil partnership.
Whose name is on the tenancy agreement?
A tenancy agreement, also known as a lease, is a contract between the landlord and tenant which sets out your rights to live in a rented property. Most tenancy agreements give the tenant a right to live in their home along with their husband, wife or partner and other members of their family. This means that if you are married or living with the tenant, your name doesn't have to be on the tenancy agreement for you to have a right to live there.
My name is on the tenancy agreement
If your name is on the tenancy agreement, either as a joint tenant or as a sole tenant, you have a contractual and legal right to live in the property. A husband, wife or partner whose name is on the tenancy agreement is known as an 'entitled' spouse or partner.
My name is not on the tenancy agreement
If your name is not on the tenancy agreement, your rights to live in the property once you and your partner have split up will depend on the legal status of your relationship.
How does the legal status of our relationship affect my occupancy rights?
My partner and I are married or in a civil partnership
Even if your name is not on the tenancy agreement, you automatically acquire occupancy rights to the family home when you get married or register your partnership. If your name is not on the tenancy agreement, you will be known as a 'non-entitled spouse' or 'non-entitled partner'.
My partner and I live together
Many people assume that if they live together, they have the same rights as a married couple. However, this is not the case. If you live together but your name is not on the tenancy agreement, you won't automatically have occupancy rights, even if you have children. This means that if you and your partner split up, you won't have a right to live in the home any more if your partner wants you to leave. However, you can apply to the sheriff court to have occupancy rights granted to you to live in the family home (see 'how do I apply for occupancy rights' below). This also applies if you live with a same sex partner and you have not registered as civil partners.
I live with a gay or lesbian partner
If you are in a same sex relationship, you will automatically have occupancy rights if you have registered a civil partnership after December 2005.
If you live with a same sex partner but you have not registered your civil partnership then you will have to apply to the court to be given occupancy rights.
What are occupancy rights?
If you're married, in a civil partnership or living together and have occupancy rights granted (see below), you have the same rights and responsibilities as an official tenant.
This means that:
- you have the right to live in the home as if you were the tenant
- your children, no matter how old they are, also have the right to live there with you (this includes grandchildren and any other child you consider to be your own)
- you have the right to stay living in the home if your spouse or partner moves out
- your spouse or partner cannot assign or sublet the property without your permission - if they do, the new tenant will not be able to move in while you live there
- you cannot be evicted without a court order and you have the right to defend any eviction action in court
- you have the right to return to your home after leaving it for a long period. How long your right to return will last depends upon when you left the home and the legal status of your relationship.
Occupancy rights also allow you to take on the responsibilities of being a tenant. This means you don't need to ask your spouse or partner's consent to do anything normally associated with maintaining the tenancy. For example, you're entitled to:
- pay the rent
- get the landlord to carry out any repairs they're responsible for
- carry out any essential repairs yourself
- carry out any improvements you have permission for.
If your partner has left the family home (for example, if they've gone to live with someone else) or is refusing to fulfil their responsibilities as a tenant, it's important that you maintain the tenancy yourself if you don't want to be evicted by your landlord. You can then apply to the court for an order to make your partner pay their share of the rent and other expenses.
If you live with an opposite sex or same sex partner and aren't married or in a civil partnership, you will need to apply to the court to get occupancy rights granted. Before you apply for a court order granting you occupancy rights, get legal advice from a solicitor or law centre. Read the page on taking legal action to find out more about getting legal advice and how much this is likely to cost.
You'll need to apply to your local sheriff court - you can find the address at the Scottish Court Service website.
How does the court decide whether to grant occupancy rights?
When deciding whether to grant you occupancy rights, the court will take into account:
- how long you and your partner have been living together
- whether you have any children together.
It's important to remember that the court won't grant you occupancy rights automatically. Your partner can oppose the granting of occupancy rights and the court will have to take their objections into account. The court may not grant the order if, for example, you have been violent towards your partner.
If occupancy rights have been granted, the court can regulate the living arrangements while you both remain in the property.
How long does it take to get occupancy rights granted?
In an emergency (for example, if your partner has just thrown you out of your home), you may be able to get a court order quickly. Speak to your solicitor about your personal situation.
How long do occupancy rights last for?
The court order will set out how long your occupancy rights will last. This can be up to six months. When this time is up, you can apply to have your occupancy rights renewed. You'll need to remember to do this - you won't get a reminder.
The court order gives you the right to live in the property as long as your partner is entitled to live there. If they are evicted or give up the tenancy, you will no longer have a right to stay there.
Is it worth applying for occupancy rights?
If you aren't eligible for legal aid then applying for occupancy rights will be expensive. Depending on your circumstances, you may be better off saving your money for a deposit on a new home.
However, if you have children or think it will be hard to find new accommodation that's suitable for you, then it may be a good idea to apply for occupancy rights. This will mean you will have rights to stay on in your partner's home until you can find a new place to live. You may also be able to ask your partner's landlord to transfer the tenancy into your name.
Get advice from a Shelter advice centre, Citizens Advice or a law centre if you're in this situation. Use the Advice Services Directory to find help near you.