Separation: Your Rights If You Rent Your Home

When couples separate, housing is often a major concern. Who can stay in the common home? What can you do if your name isn’t on the lease? Can you transfer your lease without your ex’s consent? The legal rules are different depending on whether you’re married, in a parental union, a civil union or common-law relationship (de facto union).

This article in short

You and your ex both have a right to stay in the home if your names are on the lease.
In some cases, you may have a right to stay in the home even if your name isn’t on the lease.
If you’re married, in a parental union or civil union, special protections apply if the home you rent is considered your “family residence.”

To know which rules apply, you must first know whether you were married, in a civil union, parental union or common-law relationship. The rules change depending on the legal status of your relationship. If you’re not sure, consult a lawyer or notary.

If you’re in a common-law relationship, check if you’ve signed a cohabitation agreement that says what you’ll do with your lease if you separate.

Important!
To exercise your rights, you must respect some deadlines. Generally, you have three years to go to court. But if you’re in a parental union, you must act within 120 days of the end of your union to benefit from special protections. After that date, you could lose rights.

If both your names are on the lease, you and your ex have a right to stay in the home

If both your names are on the lease, you and your ex both have a right to stay in your home, even after separating. So you must decide together what to do with the lease. Here are some possibilities:

One of you could stay in the home and pay the rent in full.
You could cancel the lease with your landlord’s permission.
You could transfer the lease or sublet the home.
You could live as roommates until the lease ends.

Important!
You have a right to end your lease if your safety, or the safety of a child living with you, is threatened by spousal or sexual violence.

If your name isn’t on the lease, you can sometimes stay in the home

Generally, if your name isn’t on the lease, you don’t have a right to stay in the home. But there are exceptions.

You can take over the lease

If your ex moves out, and you want to stay in your home, you can take over the lease. To do this, you must:

be married, in a parental union or civil union, or have lived together for at least six months,
continue to live in the home after your ex moves out, and
tell the landlord you intend to stay no later than two months after your ex moves out.

If you meet these criteria, your landlord must agree to take your ex off the lease and add your name, with the same conditions. Once you take over the lease, your ex is no longer responsible for it.

The family residence is protected for some couples

If you’re married, in a parental union or civil union, your rental unit can be considered your family residence. If so, you can benefit from protections even if your name isn’t on the lease. That means your ex can’t sublet it, transfer the lease, or cancel the lease without your consent, or a court judgment.

What to do if you can’t agree

If discussions about housing are too difficult or conflictual, you have options.

Family mediation

In family mediation, a neutral person helps you and your ex come to an agreement. It’s often faster, less expensive and less conflictual than going to court. In Quebec, separating parents can often get free hours of family mediation.

Going to court

If mediation isn’t enough, or the situation is too tense, you can go to court. The court can do these things:

order someone to leave the home until the separation is settled,
order someone to temporarily pay rent,
assign the lease to one of you.

If both you and your ex want the other person to leave the home, the court will consider who has custody of the children when making its decision. If you have shared custody, or no children, the court will decide based on your situation.