Assignation and the family home

An application can be made for an order at anytime during the marriage or civil partnership or as an incidental order in proceedings for divorce or the dissolution of a civil partnership. [1]

Action can be raised to transfer the tenancy of a married couple or civil partners in all types of rented accommodation with the exception of a tenancy held in connection with employment, agricultural holdings, and crofts. [2] Although the landlord does not have to give consent as such, they have to be informed of an application for the transfer of tenancy and be given the opportunity of putting forward their views to the court. [3] This could be to object to the transfer taking place, for example if there are rent arrears or to support an application of a spouse or civil partner who has custody of children.

In determining whether to grant an order transferring the tenancy, the court must consider:

• the suitability of the applicant

• the applicant's ability to undertake the obligations of the tenancy

• 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 has offered to provide the non-entitled partner with alternative accommodation. [4]

If the court makes an order, the tenancy and all the obligations of the tenancy will be transferred. [5] If the spouses or civil partners were joint tenants they remain jointly and severally liable for any rent arrears accrued prior to the assignation. If the tenancy is transferred from a sole tenant to the non-entitled partner, the non-entitled partner does not become liable for any rent arrears that the sole tenant had accrued. [6] It should be noted that this is not the case with other kinds of assignations.

The sheriff may order the applicant to make a payment of compensation as part of the transfer order. [7]

For more information, please see the section on relationship breakdown.