Married tenants and staying in the home long term

A non-entitled spouse or joint tenant can apply to the court for an order transferring a Scottish secure, assured, protected or common law tenancy into solely her/his name. [1]

While many applications for a transfer of tenancy will be decided as part of a divorce action, applications for a transfer of tenancy can take place during the marriage. [2] Making an application under matrimonial homes legislation does this. [3]

Once the marriage is ended by divorce or nullity the Matrimonial Homes Act cannot be used.

The court will not issue an order transferring the tenancy to the non-entitled spouse or joint tenant:

• where the tenancy is tied to employment

• where house is part of an agricultural holding or a croft

• where it is a tenancy let on a long lease or it is part of the tenancy land of a tenant at will. [4]

However these tenancies could be transferred on divorce or nullity under the Family Law (Scotland) Act. [5]

If the non-entitled spouse or joint tenant applies to the court to become the sole tenant, the Sheriff will consider a number of factors before deciding whether or not to grant the transfer. These include: [6]

• the conduct of the spouses

• their respective needs and financial resources

• the needs of any children

• the extent to which the home is used in connection with any trade or business

• if the tenant or one of the joint tenants has offered the other spouse suitable alternative accommodation.

The court will take account of the suitability of the applicant spouse to become the sole tenant and her/his capacity to perform the obligations of the lease, [7] for example whether s/he has had problems in a previous tenancy of her/his own.

The court may order the payment of compensation by the spouse making the application to the other spouse as part of the transfer order. [8]

The landlord has to be informed of an application for a transfer of tenancy and have the opportunity of putting forward her/his views to the court. [9] This could be to object to the transfer happening, for example if there are rent arrears or to support an application by a spouse who has 'custody' of the children. If the sole tenant has rent arrears they are not transferable to her/his spouse when the tenancy is transferred. However all other liabilities are. This could be for example if there was still a sum outstanding for a rechargeable repair. [10] If the spouses were previously joint tenants, they remain jointly and severally liable for these even if the transfer to a sole tenancy takes place. [11]

Where the tenancy is a Scottish secure tenancy an ex-spouse as well as the non-entitled spouse can approach their landlord and ask him/her to seek a court order to evict the tenant in order to transfer the tenancy to them because of relationship breakdown. [12] The court has to be satisfied that it is reasonable to evict and the landlord has to offer suitable alternative accommodation to the ex tenant. The Code of Guidance recommends that for the avoidance of doubt, the person leaving should be asked to renounce any occupancy rights. [13]

A voluntary agreement between the tenant and her/his spouse and the landlord, or between joint tenants and the landlord, can be used to transfer the tenancy. In these situations the tenant or joint tenants end the tenancy and the landlord then reallocates the house as a sole tenancy. This may be less likely to happen in cases of violent relationship breakdown because of the voluntary nature of the agreement requiring the co-operation of both spouses. However the landlord is often unlikely to agree where there are rent arrears that may mean either going to court using section 13 of the Matrimonial Homes Act or by seeking an assignation.

If both spouses are agreeable it may be possible for the entitled partner or one of the joint tenants to assign the tenancy to the non-entitled partner or the other joint tenant. If an assignation takes place then all the rights and obligations of the tenancy are given over to the assignee, ie the new tenant. It is important to note that this would include any rent arrears owed by the tenant. Where the spouses were previously joint tenants each would remain jointly and severally liable for arrears.

Scottish secure tenancies

If the tenant is a Scottish secure tenant s/he can seek in writing her/his landlord's permission to assign the tenancy as a sole tenancy to the other spouse. [14] The consent of the landlord should not be withheld unreasonably. [15] Consent is deemed to have been given if the landlord does not reply in writing within one month. [16] If consent has been refused the tenant can challenge the decision in court. [17]

Assured and protected tenants

Assured and protected tenants have no statutory right to assign their tenancy and it may depend what their tenancy agreement contains.

After the tenancy has been transferred or assigned to the joint tenant or non-entitled spouse, the ex-tenant will continue to have occupancy rights as long as the couple are married and s/he remains in the property. [18]

Only after the tenancy has been transferred and the ex-tenant no longer occupies the home will the property cease to be a matrimonial home. [19] When this occurs the ex-tenant will lose all of her/his occupancy rights. [20] This will only be the case if the tenancy was transferred or assigned on or after 4 May 2006. [21]

Any pre-existing exclusion orders and/or orders regulating occupancy of the matrimonial home will cease to have effect when the tenancy is transferred. [22] The newly entitled spouse will have to apply to the court if s/he wants to exclude the ex-tenant from the matrimonial home. [23]

This legislation only applies to matrimonial homes in Scotland.