Ending relationships and housing
Updated 20 December 2018
Words you may need to know
Common law marriage - in the UK and for some reasons only such as the Rent Act , two people who live together but do not get married are considered to be married.
A tenant is someone who agrees to take on the rental of a property. That might be a bedsit, a flat or a house.
Income Support is a benefit or allowance that Customer and Local Services give to single people or families who do not have enough to live on.
A tenancy agreement is the rental agreement that is signed when you agree to rent a property
A cohabiter is someone who shares the property with another
An injunction is a court order for something not to happen
Things to think about
Jersey Law does not have 'common law marriages' and any couple who stop living together are viewed in the same way as any two people deciding not to live together such as friends or people of the same sex.
What housing qualifications each person has, will affect what sort of accommodation they are able to move into, and where there are children involved, this can be a real problem for a mother without housing qualifications.
Staying in the home
You might want to end the relationship but stay in the home and want your partner to move out. This will depend on who has signed the tenancy agreement, what housing qualification you have or whether you own the home. You will also have to think about whether you can afford to stay.
Whose name is on the tenancy agreement?
The person who signed the tenancy agreement has the right to remain in the accommodation if it is in their name, and can ask the other person to leave. If the cohabiter (the other person) refused to leave, the tenant would be free to move their property out (being careful to avoid damage), and might ask for help from the Police, especially if there was a history of violence.
The tenant who remains might find their Income Support Benefit is affected when a cohabiter moves out especially if the accommodation is then thought to be too big for them.
If the person who has signed the lease decides to leave the accommodation, then the partner left behind has no right to stay, and the landlord would be able to evict them. Evict means putting someone out of accommodation. But, if the partner of the tenant has Entitled Status, or if the accommodation is 'Registered', it might be possible to ask the landlord for the remaining partner to stay. The landlord does not have to agree to take the person left as a tenant, and if they did not have housing qualifications, it might be that the landlord would be breaking the law if they did say they could stay.
Where the partners are joint tenants
If the couple are joint tenants that means they have both signed the rental agreement and they both have equal rights to stay in the home. The general rule is that neither partner can get the other one out unless there has been violence. Any permanent solution has to be by agreement with all parties, including the landlord.
If there has been violence towards one of the parties, they may apply to the court for an injunction requiring the violent partner to stay away from the home, but see 4.5.1.L6 for the usefulness of this.
Where joint tenants hold a lease, the landlord should be notified in writing of the proposed departure of one of the tenants and her/his relinquishment of her/his tenancy. The landlord should be asked to issue a new lease (for which document the tenant will have to pay) in sole name or as a new joint tenancy with a new partner, as appropriate.
Anyone wanting to rent a home which is owned by a Trust or the States of Jersey apply through the Affordable Housing Gateway. This is an on – line application system that decides how urgent your need is.
Affordable Housing providers in Jersey will consider changing any tenancy on a case by case basis, taking into account clients’ needs as well as the criteria set out by The Affordable Housing Gateway
Andium Homes have the following when the tenant dies;
In cases where there is a death of a parent, consideration will be given to the remaining child/children to take over the tenancy, or offer alternative accommodation, providing they are over the age of 18 and residentially qualified. They will then generally be monitored by our Independent Living Team.”
The States of Jersey Housing Department (Andium Homes) decide on a case by case basis whether to transfer a lease to the remaining partner. Other affordable housing providers have their own rules.
Where the one person is the sole owner
If one person is the sole owner, that person has an absolute right to remain in the home, and the other partner must leave if the owner so wishes. The partner is entitled to a reasonable period of notice, particularly when it is a mother with children involved.
Where the couple are 'joint owners'
If both partners are joint owners of the property they each have equal rights to stay in the property provided they have Entitled Status in their own right. If they own the property as joint owners, it can only be sold if both parties are in agreement with each party receiving a share of the proceeds. However, a sale can be 'forced' by one party, so it would be important for people who are joint owners of property and thinking of parting to seek legal advice. See also 11.1.54 Joint Ownership of Property.
Where the couple are 'owners in common'
If the partners are 'owners in common', then one party may transfer ownership of their share of the property without the other party's agreement. If one party wishes to stay in the property and has Entitled Status in their own right, a proper agreement would have to be written providing for rent to be paid for the owner moving out, for example, or for some form of payments to be made to compensate the partner moving out, in effect a 'buy-out'. A valuation of the property would be necessary, and legal advice should be recommended. See also 11.1.54 Joint ownership of property.
Licenced - cohabitation
As licenses only apply to the individual licenced person, the partner of the licenced person who cohabits is in a very vulnerable position if the relationship fails unless they have Entitled Status in their own right. Legally the partner shares the accommodation as a 'lodger' of the licenced person and has no right to occupy the accommodation if the licenced person is no longer resident. If the partner chooses or is requested to leave, they will have to look for alternative accommodation depending on their housing status.
If the person decides to leave home, they need to consider whether they are leaving for good or temporarily, in the hope of getting back into the home in the long term.
If you wish to leave the family home these are some of the options available:
- friends and relatives
- Women's Refuge see 8.22.4.L2
- privately rented accommodation, depending on housing status
- bed and breakfast accommodation
- the Shelter see 11.1.1.L2
- live-in jobs
Long term solutions
In the long term you need to decide whether you wish to return to the home or find permanent alternative accommodation. The main options are:
- going back to the home and your partner leaving
- buying another house
- States Housing, if appropriate
- private rented accommodation, depending on housing status
- house share
- live in jobs
ENDING A MARRIAGE
General points to consider
NB: If there has been violence, the housing rights of the violent person may be temporarily set aside by the court if an injunction is granted. The client may be allowed to remain in the home and the violent spouse excluded to provide immediate protection. See 4.5.1.L6 Injunctions.
There is no equivalent in Jersey of the UK Matrimonial Homes Act 1983, which gives a married couple equal rights to live in the matrimonial home. However, in Jersey customary law would protect a partner who was being unreasonably evicted from the home.
Where there has been violence, or other unreasonable behaviour, the Court has powers to require the offending spouse to leave the matrimonial home through the Separation and Maintenance Orders (Jersey) Law 1953 as amended. See 8.27.10.L1 Maintenance and separation, for how to obtain an order.
Before making a decision about housing, a client who wishes to separate or divorce should consider the following:
- s/he should be clear of her/his legal position before taking any action. Leaving the matrimonial home can be viewed as desertion under some circumstances.
- can s/he and her/his partner discuss the matter of housing and come to some arrangement, at least in the short term.
- does s/he want to leave home, or have her/his partner leave.
- does s/he fully understand their Housing Status and how this will affect the situation. See 11.5.0
If the marriage has ended, the client will probably be applying for divorce or judicial separation. When granting either of these, the court also has to make decisions about property, money and children. The court has to consider the implications of any decisions and the needs of any children of the marriage. The court also must take into account all the circumstances of the case including, for example, the income and needs of both partners and the contribution they have made to the welfare of the family. The court cannot decide what should happen to the matrimonial home in isolation. The court must consider who is likely to have custody of any children, and the financial position and housing alternatives for each partner.
The type of order the court will make depends on whether the home is rented or owned. If the home is rented, decisions about who lives there will have less effect on the other financial arrangements that are made. A home that is owned is much more central to the arrangements of the divorce.
Staying in the home
A partner may wish to end the marriage but remain in the home alone. In Jersey neither party has an unalienable right to stay in the marital home, and factors such as who owns the home, or is the tenant, and housing status also must be considered.
The non-Entitled spouse of an Entitled person, can join in the purchase of a freehold property with their spouse. In the event that the marriage should subsequently break down, whilst the couple are still married, ownership of the property can be transferred into the sole name of the non-Entitled spouse. Whilst he or she will be able to continue in occupation of said property, they would obviously not be allowed to lease or purchase alternative property in the island until they obtain Entitled Status in their own name.
If the couple divorce when ownership of the property was still in joint names, it would not be possible to transfer ownership as outlined above.
Individuals with Licenced Status, married who have purchased freehold property jointly with their spouse or civil partner
Occupation of the said property is strictly for the duration of the approved essential employee's full time employment under licenced status.
It is not possible, in the event of a relationship breakdown, for the spouse of the licenced person, be that the husband or the wife, to remain in sole occupation of the property, or for the ownership of said property to be transferred into their sole. A purchase by a Licenced person is different to one in respect of an Entitled couple, therefore spouses of licenced person facing separation or divorce should consult the Population Office for advice.
In the short term the only way to resolve decisions about who should stay in the home is for the couple to discuss the situation and come to a reasonable agreement, but this may not be simple. A counselling organisation such as Relate may be able to conciliate with any problems, and the partners' legal representatives may negotiate a solution where a couple can't communicate.
Where there has been violence, adultery or cruelty and a woman cannot persuade her husband to leave she can apply to the Court for an order to prevent him from being in the home, see 8.27.10.L1 Maintenance and Separation, or 4.5.1.L6 Injunctions.
Leaving the home
A client who wants to leave has to think of what options are available to her/him which would be appropriate and practical:
- a friend or relative's home
- the woman's refuge
- private rental/lodgings/bed and breakfast
- states accommodation if appropriate
- buying another home
- live-in jobs
A partner who leaves the marital home without the agreement of the other partner could be deemed to have 'deserted' the marriage, which is still a ground for divorce in Jersey, although this can be safeguarded by speaking to her/his legal representative before making the move., and this should always be recommended.
It is advisable to plan what s/he is going to take with her/him depending on the type of accommodation s/he is going to occupy and what arrangements can be agreed for dividing the possessions. Problems of access to the previous marital home can be sorted out by legal means if there are problems.
Rights to rented accommodation
Private rental, sole tenancy
If the sole tenant is the partner who is planning to leave the marital home, it may be possible to have the tenancy transferred into the name of the remaining partner. This will be up to the landlord's agreement and depends on the person's housing status, there is no automatic right that allows the remaining partner to stay.
If the sole tenant wishes to stay in the marital home, this should not affect the tenancy.
Where the wife is the sole tenant, and the husband is unwilling to leave, the wife may get a court order for the husband to leave the matrimonial home, under the provisions of the Separation and maintenance (orders) Jersey Law 1953, providing certain grounds exist. See 8.27.10.L1 for details of how to get a court order. This may equally apply where the husband is sole tenant.
Private rental - joint tenancies
Joint tenants are equally liable for all the rent, and where one tenant has moved out, the remaining tenant will be responsible for paying all the rent. In most cases a tenancy can be changed from joint names to a sole tenancy without any problem. However, if a new lease has to be drawn up then the cost of this must be born by the tenant.
Where one joint tenant is unwilling to assign her/his portion of the lease to the tenant wishing to remain, the Separation and Maintenance Orders (Jersey) Law 1953 can provide for the joint tenancy to be assigned to the husband or the wife as long as certain grounds are present, for example desertion, cruelty or adultery. This, of course, would depend on Housing Status restrictions, as usual. See 8.27.10.L1 for details of how to get a Court Order.
States housing - tenancy in one name only
Where the tenancy is in the husband's name alone, and he has moved, or is planning to move out, then the Housing Department will consider transferring the tenancy into the wife's name. However, as tenancies are usually in joint names, this could imply that the wife does not have Entitled Status and would not be given the tenancy in her own name. The Housing Department could be contacted to ascertain whether this is the situation. Situations of hardship should be referred to the Population Office.
Where the tenancy is in the wife's name alone, and she has left the marital home, it would be at the discretion of the Housing Department whether they passed the tenancy to the husband remaining in the accommodation, depending on the circumstances. For example, if he had been left to look after the children, he would retain the accommodation as the family home.
States housing - joint tenancy
In most cases, tenancies are in joint names, and when one of the parties moves out of the marital home, the tenancy must be assigned to the remaining partner. However, the Housing Department would not agree to the husband occupying the accommodation alone unless he had a child/ren of the family living with him.
The Housing Department will require the departing tenant to sign papers to assign the tenancy to the remaining partner. If s/he is unwilling to do this, it is possible to get this done by legal means with the assistance of a legal adviser during proceedings for separation or divorce. Under the Separation and Maintenance Orders (Jersey) Law 1953, the Court can order a joint tenancy to be assigned to the wife, where appropriate, see 8.27.10.L1
Rights to owner occupied accommodation
In Jersey there is no automatic right for the sole owner of a property to remain in it after the break up of a marriage. The circumstances of the couple would be taken into account in any settlement for separation or divorce, including whether there are any children, length of marriage, and who is making financial contributions to the family. Where there are children, it is normal for the children and a carer, most usually the mother, to remain in the family home after the breakdown of the marriage, at least until interim arrangements have been made.
In some cases, the wife may prefer to leave the home, particularly where there has been violence, but she should not do this without taking legal advice first, as her departure could be regarded as desertion in Jersey law.
If the woman is staying in the home she should continue paying the mortgage. She can apply to the Court for an interim order whilst divorce proceedings are underway to provide for the payment of the mortgage and rates etc to keep the family in the home.
If a wife is a joint or sole owner of the home, her right of occupation is secure. If the husband is the sole owner the wife will have rights to live in the home during the marriage and as part of divorce proceedings may apply for a transfer of the property into her name. To make sure one partner does not sell the property before her/his partner has had the opportunity to apply for a transfer, an injunction may be applied for if there are grounds to suspect this may happen, and legal advice must be obtained. It is also possible to injunct any proceeds of the sale as part of the 'matrimonial assets'.
There are three kinds of order that the divorce court can make. The couple can agree to one of these without going to court, or simply go to Court for their agreement to be confirmed:-
- for a sale, with division of the proceeds
- for transfer of one spouse's interest to the other. This could, for example be done in conjunction with an agreement for that partner to accept less maintenance
- for a postponed sale, for example, until the children complete their education, but sometimes beyond that. The house will then be sold and the proceeds divided in specified proportions.
NB: It is possible for one party to a separation to force the sale of a jointly owned property. This is called 'licitation'. For more information on this, see 11.1.54 Jointly ownership of property.
In the early stages of the marriage, particularly if there are no children, the court may look mainly at the financial contributions of both partners and decide that the person who put the most in should have the most out. But the longer the marriage has gone on, and especially if there are children, the less the court is interested in who put in what in money terms, and the more it considers the needs of partners and any children. It will also consider factors such as earning capacity and opportunities for finding alternative accommodation.
NB: It is important that the client receives legal advice on what the court can do and how it decides what to do so that she can choose the best arrangement.
The woman needs to decide whether she wants to remain in the home. She needs to work out whether she can afford the mortgage repayments, rent, repairs and general upkeep. She should take into account her total potential income including, for example, maintenance and Income Support Benefit. She can also:-
- apply for a lump sum payment at the divorce to deal with any arrears
- reduce the mortgage costs by negotiating with the lender
- try to increase her income
Selling the home and sharing the proceeds
If there are children it is unlikely that the Court would order a sale unless selling the home would bring in enough money to buy another house for the parent who is going to have the children to live there with them. The house, however, would have to be sold if a wife could not keep up the mortgage repayments with whatever assistance by way of maintenance the husband could pay.
If there are no children the court will decide how the proceeds of the house are to be divided by taking in to account direct financial contributions by each partner towards the purchase (payment of part of the deposit or part of the mortgage repayments) or improvement of the house, and also the indirect financial contribution where, for example, the wife has worked for part of the marriage and has use her earnings to pay some of the household bills, food, clothing, or has paid her earnings into the couple 's joint bank account. The court will also take into account the length of the marriage. If the marriage has lasted for some time and the wife has made mainly indirect financial contributions, the courts may use the principle that she should receive one third of the value as a starting point for calculating her share.
If a woman's share would be insufficient to enable her to buy a new home, particularly if her earnings put her in to a less favourable position for getting a mortgage, the court could order that the wife should get a greater share of the proceeds of sale. The court may compensate the husband by ordering lower maintenance to the wife - or none at all.
The shares of the proceeds of the sale will be expressed in percentage terms or a fixed figure. A percentage share ensures that if the property sells for far more than was anticipated, each will not lose out. A fixed figure ensures that the partner, less likely to be able to afford to buy a house otherwise, receives enough to buy a home. It anticipates the home could be sold for less than expected.
If the house has been bought with a States Loan at discounted mortgage, and the house is sold within the period of the loan, the couple has to pay back to the States of Jersey whatever subsidy they have received, however the Department do have discretion to reduce the amount repayable, or to waive it in full, in cases of hardship, and legal advisers could make representation on the couple's behalf.
The Department will consider an application by the wife to take over the States Loan if she is remaining in the house, but the amount of subsidy would be dependent on the settlement.
If a sale of matrimonial property is planned, anyone who claims to have a beneficial interest in the property due to financial contribution - for example a friend or relative who lived in the home and contributed to the mortgage - must be allowed to make representations before an order for sale is made.
Buying out one partner
Once the court has decided what share each partner has in the home, one partner could pay the other's share and have the home transferred to her/him. If the value of the home is not known or cannot be agreed, the court will usually direct that the property be valued. It saves money to agree who is to do the valuation rather than each partner having one.
The client would need to raise a lump sum. S/he could remortgage the home. The best place to try for a remortgage is the client's present building society, bank. S/he should never go to a finance company for a mortgage, as they charge high interest rates, and if she stops paying the debt mounts up very quickly. The client may get tax relief.
The home is transferred to one partner
The woman can propose to the court that she wants the home transferred to her name. This may be accompanied by an agreement to accept less, or token maintenance. This arrangement 'trades off' money with the home. It has the following advantages:-
- the future of the home is certain
- she does not have to rely on regular maintenance payments for subsistence
- she does not have to be in a position of continued dependency on her husband
- she is free to raise income from the home by letting accommodation if she wishes
If the client can choose not to have maintenance, it may be worthwhile to get an order for even a token sum, for example £1 per year, as she can then apply to have the order varied. If she does not have an order, it cannot be raised.
Stamp duty on transfer of matrimonial home
The Stamp Duty payable on the transfer of property following a Court Order for divorce, judicial separation or annulment of a marriage is much reduced from the usual duty payable. The fee is £5 for each page of the contract with a minimum fee of £10. The value of the property is irrelevant.
The court may decide that the home shall not be sold for a specified period while the partner and children live there, usually until the youngest child reaches school leaving age and / or finishes full-time education. The period specified might also be until the client remaining cohabits, re-marries, sells the property or dies. The wife may wish at a later stage to buy out her husband's share of the home, but she could only do this with his agreement.
The main problem with a deferred sale is that the arrangement usually causes difficulties later for the woman. She will not necessarily be able to buy a new home later as it can be difficult to get a mortgage when older. However the proportions agreed at the divorce should ensure that a woman will have sufficient capital when the house is sold to rehouse herself.
If the woman remaining is paying off the mortgage on the house, she will be contributing to the value of the husband's eventual share of the proceeds of sale. If, however, there is no mortgage to be paid off, she will effectively be living in the house at the husband's expense. The court therefore may make an order requiring her to pay him an occupation rent from the time that the children cease to need the house as a home.
Licenced / Entitled Status due to Social or Economic grounds - Spouses
The spouse and family of the Licenced person are in a very vulnerable position if the relationship fails unless they have Entitled Status in their own right. Legally, the spouse may not occupy the home from the moment the Licenced person is not resident there. However, in practice, the spouse would have to leave the home in as short a time as practically possible.
Normally, Licenced residents would only have been in Jersey for a limited time, the spouse, chooses to leave the Island to return to a previous home area. This can cause problems of access where there are children. Occasionally, the whole family will choose to return, the breadwinner having to forfeit the Licenced Status and job. In the case of a spouse of an Entitled person due to their Social or Economic background may have been in the Island for a number of years, both spouses may wish to stay in the Island. Unless the spouse has acquired Entitled Status in his /her own right through length of residence it would be necessary to find suitable alternative accommodation.
There is the opportunity to appeal to the Housing Minister if there is a situation of hardship (other than financial hardship).
Types of Order regarding matrimonial home
Mesher Order - If this is granted, then the Court can order that the sale of the property can be deferred for a certain period of time, for instance until the children are no longer dependent.
Martin Order - This order is for the outright transfer of the property to the woman.