When two people in a couple live together without being married, this is referred to as cohabitation. At the time of signing the lease, if both partners sign the lease jointly, they become jointly and severally liable for the lease, similar to roommates.
When two married people wish to separate, the judge assigns the family home to one of the spouses if they cannot reach an agreement. In the case of cohabiting partners, the situation is different, as no judge is involved in the separation. Therefore, it is essential to first determine the legal relationship between the partners to understand the applicable rules for lease transfer.
Established case law has determined that the rules applicable to cohabitation are those of a simple partnership (Art. 530 et seq. CO). The law defines a simple partnership as "a contract by which two or more persons agree to pool their efforts or resources to achieve a common goal" (Art. 530 para. 1 CO). In practice, it is rare for cohabitants to enter into a written simple partnership contract. Thus, a simple partnership usually arises implicitly, without the cohabitants being fully aware of it.
The simple partnership contract that binds cohabitants implies that decisions related to their joint lease must be made unanimously. However, there is an exception for routine management acts (Art. 535 para. 1 and 2 CO). For these simple cases (e.g., minor repairs, notifying the landlord of a defect, etc.), each cohabitant can act without needing the other’s consent. The same applies to "emergency situations" (Art. 535 para. 3 final CO), i.e., special emergencies. In such situations (e.g., the end of the deadline to contest a rent increase), one cohabitant can make a decision alone that will be valid for both.
Therefore, if two cohabitants wish to move but remain together, they must act together to terminate the lease (Art. 266 l para. 1 CO), to return the premises early (Art. 264 CO), or to obtain permission to sublet (Art. 262 CO).
However, if the cohabiting couple separates, the situation becomes more complex. Various scenarios must be considered:
Neither Partner Wants to Keep the Shared Home: In this case, the cohabitants must terminate the lease together before each can move into a new home.
One Partner Wants to Keep the Shared Home: It is common for the cohabitants to agree that one of them will keep the former shared home. In this case, it is sufficient for the remaining cohabitant and the landlord to sign a new lease between them. The departing cohabitant will then be relieved of their lease obligations. If the landlord is hesitant about the remaining cohabitant assuming the lease alone (e.g., fearing they may not be able to pay the rent alone), the process of early return of the premises (Art. 264 CO) must be followed. This provision relieves the departing cohabitant of their obligations to the landlord provided that: (1) the remaining cohabitant agrees to take over the lease on the same conditions; (2) the remaining cohabitant is considered financially solvent; and (3) the landlord cannot reasonably refuse the presence of the remaining cohabitant.
Disagreement Over the Shared Home: If the cohabitants cannot agree on what to do with the former shared home, no judicial authority has the power to resolve the issue and assign the home to one of them, unlike in cases of married couples. The only possible solution is to proceed with the dissolution and liquidation of the simple partnership (Art. 545 to 550 CO).
Each cohabitant has the right to request the judge to pronounce the dissolution of the simple partnership for just cause (Art. 545 para. 1 ch. 7 CO). In the canton of Vaud, the president of the district court is competent (Art. 6 para. 73 CDPJ). According to Art. 545 para. 2 CO, this can be done without prior notice when the simple partnership was formed for an indefinite duration (as is generally the case with cohabitants). Proven disagreement between cohabitants constitutes sufficient grounds for "just cause."
Once the simple partnership contract is dissolved, the liquidation must also be pronounced. It is at this stage that the issue of the shared home will be resolved. Liquidation can be carried out either by unanimous decision of the cohabitants or by judicial means. The judge may then order one of the cohabitants to terminate the lease.
If you wish to obtain further information or need our support, please do not hesitate to contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) so we can assist you with your procedures.
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