How do I keep the flat?

How do I keep the flat?

After only a few years of marriage, my relationship is on the rocks and I'm considering separation proceedings, in which I intend to ask to keep the flat we live in together and which we'll probably both claim, as we're very attached to it... Can I ask the landlord to amend the lease so that I'm listed as the sole tenant?

K, Cointrin

A tenancy agreement may bind a landlord to several co-tenants, who then co-sign the agreement. It may be worthwhile for a landlord to enter into a contract with several tenants for the same property, as they will be jointly and severally liable for the rent. This means that the landlord will be able to claim payment of the full rent from each of them and, in the event of late or non-payment, take legal action against each joint tenant.

If one of the co-tenants leaves the rented property while the lease is still valid, he or she remains jointly and severally liable for the rent. The contract can only be validly amended or terminated if certain deadlines are met and the rented property is returned, which obviously poses a problem if the other tenant refuses to leave. In the case of cohabitees who are separating, it is therefore necessary to come to an agreement with the landlord for one of them to take over the lease in his or her name alone, or to initiate proceedings to wind up the partnership - awkwardly called a "simple" partnership! - that the joint tenants have formed.

When a couple is married, the family home enjoys special protection under Swiss law: even if only one of the spouses is listed as the tenant on the lease, the lease cannot be terminated without the agreement of the other. In the event of a divorce, the judge will allocate the family home to one of the future ex-spouses. In this case, it does not matter who is officially on the lease agreement, which will have to be adapted if necessary.

The situation is even different in a procedure for measures to protect the marital union, i.e. one that only regulates the separation of a couple going through a crisis phase who are deemed to be married until a divorce is granted. In this case, the judge will assess the needs of each of the separating spouses and award exclusive use of the family home to one of them, authorising that person to remain in the rented property and live there separately from the other spouse. However, such a court order does not oblige the owner of the property in question to amend or transfer the lease in favour of one of the spouses only. Consequently, if the rent is not paid, the latter may continue to approach his or her two debtors.

It follows that you will probably not be able to have your lease amended without reaching an agreement on this point with your spouse and your landlord until a divorce decree has been issued, because even if this contract were in your name alone, it is not certain that a court would award you the flat you both so covet.