Waheeda Alli
Solicitor
25 Sept, 2010

What are Matrimonial Home Rights?

'Matrimonial Home Rights' is the name given to a collection of statutory rights which seek to protect a spouse in the occupation of the matrimonial home.Although the Family Law Act 1996 is primarily concerned with 'spouses', the rights were extended to civil partners by the Civil Partnership Act 2004. The scheme of the Family Law Act 1996, so far as it relates to matrimonial home rights, is quite complicated, but essentially, it does three things:

1. It gives a non-owning spouse certain rights to occupy the matrimonial home, and to enforce the same by what are called 'occupation orders'.
2. It provides that in certain circumstances one spouse's rights of occupation shall be a charge on the estate of the other, and that subject to registration, such a charge can bind third parties, including mortgagees.
3. It contains a number of procedural provisions which seek to protect the non-owning spouse in occupation in the event of proceedings for possession by a mortgagee.

Under what circumstances do these rights arise?

It is a common misconception that if only one of you has his/her name on the Title Deeds, or one of you brought the property during the marriage that their partner has no rights and no financial right to claim. This is not the case, as the law assumes various rights of occupation, as detailed above, especially if there are children of the marriage involved.

Where there are no children involved but you made a financial contribution, or contribution in kind (refurbishment etc) your contribution would be considered, and you may be entitled to a Lump Sum settlement to allow you to rent elsewhere, or put down a deposit for another property.

How are these rights protected?

Where your name is not on the Title Deeds it is essential that you determine your spouse's or civil partner's interest in the property be it freehold or leasehold as this will effect where your interest should be noted. A tenancy or lease for less than seven years cannot be registered at the Land Registry. However, a lease with a term over seven years will require registration and will have its own title number at the Land Registry. Therefore it is essential that your interest is noted against the correct title to protect you.

The method of protection of your rights will vary according to whether or not your spouse's ownership of the house is registered with the Land Registry. If your spouse's interest in the house is registered under the Land Registrations Acts, your rights can be protected by way of a "Notice" in the register kept by HM Land Registry. Registration of your Matrimonial Home Rights through the Land Registry will prevent your former partner from selling the property, transferring ownership, or remortgaging until any financial settlement is resolved.

This Notice is only valid while you are married (i.e. until the Decree Absolute is issued within the Divorce proceedings) unless there is a Court Order to the contrary.

If your spouse's ownership of the house is not registered then your rights can be protected by a "Class F Land Charge" in the records kept by the Land Charges Department. Therefore, if you think that your spouse is about to sell or re-mortgage the house without your consent it is vital that you protect your rights.