The breakdown of a relationship can be a stressful and upsetting period in anyone’s life. Disputes regarding property can make the situation even more difficult. Legal executive Diane Matthews, from WHN Solicitors’ Blackburn office, outlines your rights and the procedures to put in place to help ensure you can remain in the family home during this difficult time.
If you are in the process of divorce, or ending a relationship with a civil partner, you will have the added concerns about what the end of your relationship may mean for your right to remain in the family home.
This is even more of a concern if your former spouse or civil partner is the sole owner of the family home. However, there are several ways you may protect yourself from being compelled to leave your home.
Matrimonial property rights
Prior to marriage, if you and your partner moved into a property that was only owned by one of you, the non-owning party does not have legal ownership of the property.
Subsequently, if you marry or enter a civil partnership, the non-owning party automatically receives Matrimonial Home Rights. This means that, while the non-owning party does not acquire ownership of the property, they are allowed to live there while they are married to the owning party or in a civil partnership with them.
However, it is essential that these rights to occupy the property are registered at the Land Registry as soon as possible to ensure that, should the relationship break down, the spouse or civil partner who owns the property cannot sell or mortgage the family home without the non-owning party’s consent.
What is a Matrimonial Home Rights Notice?
A Matrimonial Home Rights Notice is a formal legal document which confirms that a non-owning party has the right to live in a property owned by their married or civil partner. Such rights are protected under the Family Law Act of 1996, but they must be registered as a Home Rights Notice at the Land Registry to be binding. If you register a Matrimonial Home Rights Notice, you cannot be forced to leave the family home and your spouse or civil partner cannot sell or re-mortgage the property without your consent.
These rights will remain in place and will provide protection until divorce, annulment of marriage or the dissolution of a civil partnership is finalised. In some cases, you may be able to apply for a Continuation Order if there are disputes regarding the final settlement.
You do not need a partner’s consent to register a Matrimonial Home Rights Notice, although the Land Registry will notify the owning partner that such a Notice has been registered.
It is only possible to register a Matrimonial Home Rights Notice for one property. It must be the property which is the family home. You are therefore not able to register Home Rights for properties you did not plan to live in, such as properties which have been purchased with the intention of letting them or using them as a holiday home.
The family home does not need to be a house, it may be a flat or even, in some cases, a caravan. The test is that the property concerned is the property in which you and your spouse or civil partner intended to live in together during your marriage or civil partnership.
What is an Occupation Order?
If your relationship ends and you have not registered your Home Rights, by law you have no legal right to live at the property and your former partner may take steps to force you to leave. It is also possible for them to try to sell or mortgage the property without your consent or knowledge, which could cause serious issues.
Therefore, it is always best to register Home Rights as soon as possible to ensure that, in all circumstances, you can protect yourself in the event of a relationship ending.
If you have registered Home Rights, the only way in which your former partner can force you to leave the home is by obtaining an Occupation Order which determines that you have no right to remain in the property.
Occupation Orders are intended to protect victims of domestic abuse. If you are a victim of such abuse and your partner either owns the property you share or has Home Rights, you may file an application for an Occupation Order against them to force them to leave.
However, while your partner can only force you to end your Matrimonial Home Rights in this way, it is possible for the court to revoke them if they were granted for a false reason. For example, if the person attempting to register Home Rights is doing so for an entirely wrong reason (such as purely financial reasons), the court may remove the Home Rights.
What happens to my Matrimonial Home Rights once our divorce is finalised?
Registering Home Rights will not affect the settlement in any divorce. However, Matrimonial Home Rights will end once a financial remedy settlement (within divorce or dissolution of a civil partnership) has been finalised. This means that you need to resolve housing issues within any financial remedy application or negotiation.
The person who has registered Matrimonial Home Rights may choose to cancel them if they have come to an agreement about who will remain in the family home.
Home Rights Notices mean the owning party cannot sell or mortgage the property concerned without the consent of the party holding the Home Rights as set out above. However, if the property was already in mortgage, the lender would be able to repossess the property should mortgage payments fall into arrears.
Therefore, payments can be made towards the mortgage by a party with Matrimonial Home Rights to prevent mortgage arrears accruing. In cases brought by mortgagees for possession of a property, a Suspended Possession Order can be issued to the non-owning spouse with Matrimonial Home Rights enabling them to make payments towards both the contractual monthly instalment and mortgage arrears.
It is important, always, that both the owning and non-owning party ensure that a mortgage does not fall into arrears during any dispute.
What happens if the property is not registered with the Land Registry?
The actual process for registering Matrimonial Property Rights will differ depending on whether the property in question is registered or unregistered land. The Land Registry holds a register of properties. Even though land registration is compulsory, there are still many properties in the UK which are not registered. This simply means that the property details are not held by the Land Registry.
The procedure will differ slightly in each case, but it is sensible to seek legal advice. In the case of registered properties, your solicitor may assist by completing a form entitled Notice of Home Rights on application (HR1) which would be sent to the Land Registry.
Regarding un-registered property, a form entitled Class F Land Charges registration: application (K2) would be submitted to the Land Charges department.
What if my partner and I are not married or in a civil partnership?
Unmarried couples are not afforded the same property rights as those who are married or in a civil partnership, with co-habiting couples not automatically entitled to make financial claims against each other on separation.
Property rights for unmarried couples will also differ depending on whether they live in rented accommodation or whether a property is owned together.
Further details can be found in our blog post: A guide for unmarried couples who are separating: Do I have to move out of the house?
Diane Matthews specialises in divorce and separation, including the dissolution of civil partnerships and the associated financial consequences. If you are concerned about your rights to remain in the family home during divorce or separation, please contact Diane on 01254 272640 or by email: diane.matthews@whnsolicitors.co.uk
