SCHEDULES

SCHEDULE 7 Transfer of certain tenancies on divorce etc. or on separation of cohabitants

Part I General

Interpretation

1

In this Schedule—

  • F1“civil partner”, except in paragraph 2, includes (where the context requires) former civil partner;

  • “cohabitant”, except in paragraph 3, includes (where the context requires) former cohabitant;

  • F11“the court” means the High Court or the family court,

  • “landlord” includes—

    1. a

      any person from time to time deriving title under the original landlord; and

    2. b

      in relation to any dwelling-house, any person other than the tenant who is, or (but for Part VII of the M1Rent Act 1977 or Part II of the M2Rent (Agriculture) Act 1976) would be, entitled to possession of the dwelling-house;

  • “Part II order” means an order under Part II of this Schedule;

  • “a relevant tenancy” means—

    1. a

      a protected tenancy or statutory tenancy within the meaning of the Rent Act 1977;

    2. b

      a statutory tenancy within the meaning of the Rent (Agriculture) Act 1976;

    3. c

      a secure tenancy within the meaning of section 79 of the M3Housing Act 1985; F2. . .

    4. d

      an assured tenancy or assured agricultural occupancy within the meaning of Part I of the M4Housing Act 1988; F3or

    5. e

      an introductory tenancy within the meaning of Chapter I of Part V of the Housing Act 1996;

  • “spouse”, except in paragraph 2, includes (where the context requires) former spouse; and

  • “tenancy” includes sub-tenancy.

Cases in which the court may make an order

2

1

This paragraph applies if one spouse F4or civil partner is entitled, either in his own right or jointly with the other spouse F4or civil partner, to occupy a dwelling-house by virtue of a relevant tenancy.

F52

The court may make a Part II order—

a

on granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or nullity of marriage, before or after the decree is made absolute), or

b

at any time when it has power to make a property adjustment order under Part 2 of Schedule 5 to the Civil Partnership Act 2004 with respect to the civil partnership.

3

1

This paragraph applies if one cohabitant is entitled, either in his own right or jointly with the other cohabitant, to occupy a dwelling-house by virtue of a relevant tenancy.

2

If the cohabitants cease F6to cohabit, the court may make a Part II order.

4

The court shall not make a Part II order unless the dwelling-house is or was—

a

in the case of spouses, a matrimonial home; F7. . .

F8aa

in the case of civil partners, a civil partnership home; or

b

in the case of cohabitants, a home in which they F9cohabited.

Matters to which the court must have regard

5

In determining whether to exercise its powers under Part II of this Schedule and, if so, in what manner, the court shall have regard to all the circumstances of the case including—

a

the circumstances in which the tenancy was granted to either or both of the spouses F10, civil partners or cohabitants or, as the case requires, the circumstances in which either or both of them became tenant under the tenancy;

b

the matters mentioned in section 33(6)(a), (b) and (c) and, where the parties are cohabitants and only one of them is entitled to occupy the dwelling-house by virtue of the relevant tenancy, the further matters mentioned in section 36(6)(e), (f), (g) and (h); and

c

the suitability of the parties as tenants.