How Does a Spouse/Civil Partner Protect Their Home Rights?

Before I go any further, I should make clear that the purpose of this article is explain how home rights (the right of a spouse or civil partner to occupy the matrimonial/partnership home) are protected at Land Registry. It is by no means a general commentary on the rights of a spouse or civil partner on the breakdown of the relationship. It is not intended to be professional legal advice and should not be treated as such. If you need advice following the breakdown of a relationship then you should seek the advice of a solicitor specialising in family law.

Section 30 of the Family Law Act 1996 (as amended by the Civil Partnership Act 2004) gives spouses and civil partners who would not otherwise have a right to occupy the matrimonial home, for example under a tenancy or by virtue of being a joint owner, a right to do so. Civil partners now have the same home rights as spouses and for ease, for the remainder of this article I will use the term “spouse” to mean both spouse and civil partner.

Nature of Home Rights and Their Effect

Home rights merely allow the non-owning spouse to remain in occupation of the property. They do not entitle that person to any of the equity arising from a sale of the property (though of course the non-owning spouse may be so entitled as part of the division of the assets of the marriage). The owning spouse remains the legal and beneficial owner.

Where a property is or was intended to be the matrimonial home then a non-owning spouse in occupation cannot be evicted except with the leave of the Court, as long as the rights continue. If the non-owning spouse is not currently in occupation of a property which is or is intended to be the matrimonial home then he or she may, with the leave of the Court, take up occupation and remain there until the home rights come to an end.

When Do Home Rights Come to an End?

Home rights can be brought to an end in a number of ways. They will end upon the death of either spouse or on the termination of the marriage otherwise than by death (i.e. upon completion of a divorce). It is possible for the non-owning spouse to apply to the Court for an order under s33(5) of the Family Law Act 1996 allowing the home rights, and therefore the occupation, to continue after the termination of the marriage.

Home rights can also come to an end when the owning spouse ceases to be entitled to occupy the property. This might happen where it is repossessed by a mortgage lender. It can also happen where the property is sold to a purchaser for market value and the home rights are not protected by an entry in the register. If there is an entry in the register however then the purchaser must take the property subject to the rights of the non-owning spouse and cannot evict him or her even after the sale is completed.

Protecting Home Rights on the Title to the Property

As mentioned above, a non-owning spouse’s rights of occupation will be brought to an end where the property is sold to a purchaser for market value unless the rights are protected by registration against the title to the property. If the rights are registered however, they will bind the purchaser. This highlights the importance for non-owning spouses of registering their rights and the importance for purchasers of checking for any registrations that have been made.

To protect his or her rights, it is necessary for the non-owning spouse to make an application to either the Land Registry (if the land is Registered) or the Land Charges Department (if it is not). To find out whether or not it is registered a person can order a copy of the register of title. If the property is registered this will reveal the title number, which will be needed for the application form, and will also confirm whether the property is indeed registered in the name of the person against whom the rights are claimed and any mortgages which might overreach the rights of the non-owning spouse.

Registering Home Rights – Registered Land

Where the title to the land is registered with the Land Registry, an application in form HR1 needs to be completed and submitted to the Land Registry office serving the property to which the rights relate. If the application is subject to a Court Order then a certified copy of the Order will need to be enclosed. The local office can be found using the Land Registry’s “Office Finder” tool and form HR1 can be found on the “forms and publications” section of the Land Registry website.

When the application is received, the Land Registry will make a type of entry called a “notice” against the title to the property. They will also write to the registered owner and inform them that the application has been completed – they are legally obliged to do this.

If rights are registered before the termination of the marriage and subsequently an Order is made under s33(5) of the Family Law Act 1996 then a further registration must be made which must include a copy of the Court Order. No fee is payable for an application using form HR1.

Registering Home Rights – Unregistered Land

If title to the land is unregistered then the application is made against the name of the owner, rather than the land. The application is made to the Land Charges Department using form K2 and the fee is £1. The result, if the application is in order, will be that a “Class F Land Charge” will be registered against the name of the owning spouse. The Land Charges Department will not write to the owner however a search against that person carried out with the Land Charges Department will reveal the entry. Such a search will be carried out when the property is being sold or mortgaged, though can be carried out by anyone at any time (for example if the spouse suspects an entry has been made against him or her).

As with registered land, if the right to occupation is extended by an order under s33(5) then a further application including a certified copy of the Court Order will be required.

Cancellation of Registration of Home Rights

A spouse’s home rights can come to an end as a result of any of the following:

• the death of the owning spouse;
• the termination of the marriage (by divorce or annulment);
• an order of the Court or;
• voluntary release by the spouse with the benefit

When the rights have come to an end the registration should be cancelled. In the case of registered land this is done by submitting form HR4 to the appropriate Land Registry office. There is no fee. In the case of unregistered land the form is K13 and the fee is £1. In either case the appropriate evidence needs to accompany the application, for example a death certificate or divorce decree (unless the rights are released voluntarily in which case it should be made by the beneficiary).

If the rights are being cancelled following the making of an order under s33(5) and that order has previously been registered, the application will need to include evidence that the order has ceased to have effect.

Buying a Property – Checking for Home Rights

When buying a property, provided the purchase is at market value then the purchaser takes the property free of any home rights that a person may have acquired provided those rights are not registered. If they are registered however the purchaser takes subject to them and will not be able to evict the claimant spouse except by obtaining a Court order (which may be refused).

To establish whether any home rights are registered, for registered land the purchaser should obtain up to date official copies of the register of title and for unregistered land the purchaser should carry out a Land Charges Search against the seller.