Civil partner tenants and problems with occupancy rights

If a sole tenant or joint tenant wants to enter into a transaction that would impact on the other civil partner's occupancy rights, the tenant or joint tenant must get written consent from the other civil partner first. [1] A transaction could be ending the tenancy, or subletting or assigning the tenancy.

If a sole and/or joint tenant enters into a transaction with a third party without the other civil partner's consent, for example by subletting or assigning the tenancy, the third party cannot legally move into the property. If a third party has moved in, s/he will not be entitled to occupy the property. [2]

If, however, the entitled partner ends the tenancy without the permission of the non-entitled spouse there is a possibility that the non-entitled partner will lose her/his occupancy rights. This will occur if the landlord lets the property to a third party. The third party must have acquired the tenancy is good faith and for value. [3]

Where the non-entitled partner or other joint tenant will not give written consent to a transaction, the sole tenant or joint tenant can apply to the court to have the requirement for the other partner's written consent dispensed with. [4] The court must take into account:

• if the other partner is withholding consent unreasonably [5]

• the conduct of the partners

• the respective needs and financial resources of the partners

• the needs of any child of the family

• whether the entitled partner or joint tenant has offered to provide the non-entitled partner or other tenant with alternative accommodation. [6]

In the event that the non-entitled partner or a joint tenant applies for an order enforcing her/his occupancy rights at the same time as the entitled partner or other joint tenant applies for an order allowing her/him to enter a transaction without the consent of her/his civil partner the action regarding occupancy rights must be decided first. [7]

If the court refuses to grant an order dispensing with the consent of the non-entitled partner to the transaction, it may require the non-entitled spouse to [8] make payments to the landlord for occupation of the matrimonial home or comply with other conditions relating to the occupation of the family home.

It is possible that landlords will not be aware of the Civil Partnerships legislation and will not ask for the non-entitled civil partner's consent before agreeing to a transaction. If the non-entitled civil partner or joint tenant leaves the family home, s/he should inform the landlord and provide details of how s/he can be contacted if the tenant or joint tenant attempts to terminate the tenancy.

If the non-entitled civil partner or joint tenant has not occupied the home for a period of two years (or five years if the period of non-occupation began before 4 May 2006) [9] and during that time s/he has not cohabited with the entitled partner, it will no longer be considered a family home and her/his consent will not be required before a transaction can be entered into. [10]