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Tenants who separate or divorce have the following options:

Separation of cohabiting partners

If you are not married or have entered into a partnership and live in your flat with your cohabiting partner, you are either both holders of the tenancy agreement or the tenancy agreement is in the name of one person.

One of the two is the holder of the tenancy agreement

In this case, the holder of the tenancy agreement can stay in the flat, but the person who is not the tenant has no rights to the flat. If he wants to take over the lease, the lease holder can contact the landlord, explain the situation to him and ask for his consent to draw up a new lease with the other person. He must therefore terminate the tenancy agreement and propose his ex-partner as the successor tenant. The landlord is not obliged to accept this proposal. We recommend the landlord to consider the application of the person who wants to take over the tenancy as usual and to assign him the flat if he meets the criteria, especially the ability to pay. Also watch my video:

You both hold the lease

If you have signed the tenancy agreement together, you must first agree who wants to stay in the flat. Then you must approach the landlord and ask for his or her agreement to assign the flat to the person who wants to take it over. Note that the landlord is not obliged to assign the flat to your partner, even if he or she has been living in the flat for a long time. The landlord, if he agrees in principle to rent the flat to either person, will in this case ask for a dossier to check the person's creditworthiness. An addendum to the tenancy agreement can then be drawn up to release the person leaving the flat from the obligations under the tenancy agreement and accept the new holder of the tenancy agreement.

Separation of a married or partnered couple

Family dwelling

If you are married or partnered and the tenancy agreement concerns your main residence, it is a family dwelling that cannot be terminated without the express consent of your spouse, even if he or she did not co-sign the tenancy agreement. According to Art. 266 m of the Swiss Code of Obligations, the tenant can appeal to the judge if it is not possible to obtain this consent or if the spouse refuses to give it without a legitimate reason.

According to case law, the main residence remains a family home as long as the marriage or partnership exists, even during divorce proceedings or in the event of separation.

Nevertheless, the dwelling may lose its family character if the spouses are permanently and definitively separated.

If both spouses are holders of the tenancy agreement, the one who leaves the flat remains the tenant and thus responsible.

In the event of disputes between the spouses, a judge may take measures to protect the marital community within the meaning of Art. 175 of the Civil Code. These measures may relate to the allocation of the dwelling to one of the spouses.

Article 175 Civil Code

"A spouse is entitled to suspend the joint household as long as hi or her personality rights or financial security or the welfare of the family are seriously endangered by living together." 

Divorce of the couple

Art. 121 Civil Code

1.

If a spouse must remain in the marital home because of the children or for other compelling reasons, the court can transfer the rights and obligations under the tenancy agreement to that spouse provided this is not inequitable for the other.

2.

The previous tenant is jointly and severally liable for payment of the rent up to the date on which the tenancy ends or can be terminated purusant to the tenancy agreement or by law, but for a maximum period of two years; if an action is brought to recover rent due, he or shie is entitled to set off the amount paid in instalments equal to the amount of the monthly rent against any maintenance payments owed to the other spouse.

3.

If the home belongs to the family of one of the spouses, the court can, on the same conditions, grant the other spouse a right of residence for a fixed term in return for reasonable compensation or set-off against maintenance payments. Where new and compelling reasons so require, such right of residence can be restricted or revoked."

In a divorce convention, it is advisable for the couple to apply to the judge for the allocation of the flat.

If the judge assigns the flat to one of the spouses, the landlord is obliged to accept this and cannot oppose it. The rent deposit is also transferred with the tenancy agreement, unless the spouses have provided for the provision of a new deposit, which allows the landlord to release the old deposit.

In a divorce convention, it is advisable for the couple to apply to the judge for the allocation of the flat.

If the judge assigns the flat to one of the spouses, the landlord is obliged to accept this and cannot oppose it. The rent deposit is also transferred with the tenancy agreement, unless the spouses have provided for the provision of a new deposit, which allows the landlord to release the old deposit.

In a divorce convention, it is advisable for the couple to apply to the judge for the allocation of the flat.

If the judge assigns the flat to one of the spouses, the landlord is obliged to accept this and cannot oppose it. The rent deposit is also transferred with the tenancy agreement, unless the spouses have provided for the provision of a new deposit, which allows the landlord to release the old deposit.

 

© Author Esther Lauber, Real Estate Trustee with Advanced Federal Diploma of Professional Education and Training, real estate agent, property broker and manager in Carouge Geneva, Geneva, speaks German, French and English
Written and translated by Esther Lauber from French or German into English and partially translated with DeepL and correction by Esther Lauber, articles of law English version found in the book "Handkommentar zum Schweizer Privatrecht".  In case of doubt, the French or German version applies.

 

More information that may be of interest to you:

Registration file - applications to rent flats and houses
Termination of a lease by the tenant
Lease and termination of lease for a family dwelling

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