At Prism Family Law, we have often encountered spouses who have been told that because they are not an owner of the family home they have no rights of occupation upon separation, however, Matrimonial Home Rights give protection to a husband, wife or civil partner under the Family Law Act 1996 where the matrimonial home is owned by one spouse but the other spouse has a right of occupation.
If the non-owning spouse is in occupation, they have a right not to be evicted by the other spouse
without an order of the court or if they are not in occupation they have a right, with leave of the court, to enter and occupy the matrimonial home.
There is no protection under the Family Law Act unless the home rights have been registered against the property at the Land Registry. Lenders should receive notification of any entry made after its legal charge has been registered.
In these circumstances then, it is highly recommended that you register your ‘home rights’ with the Land Registry at the earliest opportunity to protected any interest that you may have as a consequence of your marriage to one another and to then stop your partner from selling the family home without your say so.
There are different rules if you own the property jointly with your spouse or civil partner, or if you’re not married or in a civil partnership and you can’t apply to register home rights if your spouse or civil partner owns the property with someone else – unless your spouse or civil partner would get all the money if the property was sold (also known as being the ‘sole beneficial owner’).
How long could I live in the property?
You can usually only live in the property until the divorce, annulment or dissolution has been finalised and a court settlement agreed.
You may be able to continue living in the property for longer, eg during an ongoing dispute about who owns what, if a court has made a ‘continuation order’ allowing you to do this.
You may be able to take legal action against your partner if they try to:
- Force you to move out
- stop you moving back into a home you’re not currently living in, e.g. if you moved out temporarily
Once your Matrimonial Home Rights have been registered they act as a charge on the property resulting in the registered owner being unable to sell or mortgage the property unless written consent has been received from the spouse in whose favour the right is registered.
You should be aware however that the registration of Matrimonial Home Rights with the Land Registry against the property does not prevent a mortgagee from issuing proceedings for possession of a property.
The Civil Procedure Rules (55.10) require notice of any possession proceedings being issued to be served on the person with the benefit of a home rights notice within five days of the Claimant receiving notice of a hearing date. The non-owning spouse can then apply to the court to be joined into the possession claim as a second Defendant if an application is made before the proceedings have been disposed of and if the non-owning spouse can be expected to make payments under the mortgage (see section 55 FLA).
A spouse with Matrimonial Home Rights so registered could then make payments towards the mortgage and these payments are as good as if made by the borrower and so the lender can accept such payments from the non-owning spouse but it would be highly advisable for the lender to send clarification to the non-owning spouse confirming the basis upon which payments are being accepted.
The upshot of this is that a Suspended Possession Order could be made where the non-owning spouse is ordered to make payment of the current monthly instalment plus a sum towards the arrears.
Ultimately, however if neither party can demonstrate the ability to make payments to the lender, a
Possession Order should be granted by the court, and once granted, regardless of any other circumstance, you would be required to surrender the family home to such lender with a view to then the property being sold to recover any sums owing.
So in answer to the original question, even if you are not a joint owner of the family home, it is highly recommend that at the earliest opportunity you register with the Land Registry your Matrimonial Home Rights and so providing for you to have a right of occupation of the property but as this short news item demonstrates it is a complex area to advise upon and so we would strenuously advise those that are impacted upon this issue in this way to seek legal advice and help at the earliest opportunity before it is too late.
At Prism Family Law, we deliberately offer to all potential client’s a free 30 minute initial appointment so that we can discuss your requirements and case such so as to allow us to advise you on all the available options – including applications to register Matrimonial Home Rights with the Land Registry and to protect your financial position generally.
Should you require the services of Prism Family Law for any family law related matter please do not hesitate to contact solicitor Andrew Wraith in the first instance.