The Matrimonial home is the home shared by a married couple or a couple in a civil partnership. The law affords both spouses an automatic right to occupy their matrimonial home, even if it is only owned by one of them. These are known as Matrimonial Home Rights and they aim to protect the party who does not own the property from being evicted. It is particularly common following the breakdown of a marriage or partnership for a spouse (‘party’) who owns the property to try and evict the party who does not have a legal interest in the property. It is therefore important to be aware of these rights. This article will explore what Matrimonial Home Rights are, their importance, how to enforce them and how they can be removed.
What is a Matrimonial Home and what are Matrimonial Home Rights?
A Matrimonial Home is the home occupied by a couple who has entered into a marriage or a civil partnership. Any other property which is not occupied by the couple is not classed as a matrimonial home – such as a commercial property or a tenanted property cannot be a matrimonial home.
Matrimonial Home Rights aim to protect the party who does not have a legal ownership in the property, against eviction, during a divorce or breakdown of relationship. It is important that a party who has matrimonial rights registers them if faced with this situation, to allow them to continue residing in the property.
How are Matrimonial Home Rights registered ?
The registration of matrimonial rights is essential to notify others of a party’s right to occupy the property. Whilst this does not override any interests in the property, the registration appears as a notice and is protected on the register. It prevents the legal owner from selling, transferring or mortgaging the property without first obtaining consent from the party who has registered their home rights.
The party wanting to register their home rights must first determine whether the property is registered or unregistered. A registered property is one which is included in the Land Registry. This is a register which contains information about all registered land such as, proof of ownership, description of property and any other interests affecting the property. Unregistered property is a property not registered in the Land Registry but is kept in separate documents known as Title deeds.
The Land Registry contains the details on whether a property is registered or unregistered. If the property is registered, then a HR1 form (application for registration of a notice for home rights) will need to be completed. If the property is unregistered, then a K2 form (application for registration of a Class F Land Charge) will need to be completed.
If the application is approved, matrimonial home rights will appear as a notice on the title deeds of unregistered property or on the Land Registry for registered property, making it visible to any potential purchasers. If the land is registered, the party who owns the property will be made aware of the application by the Land Registry. If the land is unregistered, the party who owns the property won’t be notified but can find out if they make enquiries or carry out searches with the Land Charges Department. The notice will remain in place until the parties reach an agreement or the court grants permission for its removal.
How do I remove the Matrimonial Home Rights Notice?
The spouse who owns the property can only apply to have Matrimonial Home Rights removed if:
- The party who has registered their home rights dies and a death certificate has been shown.
- The marriage has ended through divorce and a decree absolute has been shown.
- An application is made for removal by the party who registered the home rights.
- The court grants permission.
However, the party who does not have a legal interest in the property may still be allowed to occupy the matrimonial home even after the finalisation of divorce through a continuation order. To apply for a continuation order, home rights must be renewed if they were registered previously. If the land was registered, then the registration of home rights can be renewed by completing a HR2 form, which will need to be sent to the Land Registry. If the land was unregistered, home rights can be renewed by completing a K8 application , which will need to be sent to the Land Charges Department.
The court can grant permission to remove these rights if the notice has been improperly registered. This occurs if it was placed against a property that has never been used as a matrimonial home and/or if the notice is not being used in the manner it should. For example, the purpose of a notice is to protect the party’s right to occupy the home and should only be registered if the party wishes to continue living in the property or intends on returning to it. It should not be used for financial gain or to purposely interfere with the sales proceedings. If it is found that this has happened, then a court order can be sought to lawfully remove the notice.
If a party wishes to cancel their home rights, they can do so by completing the relevant forms. For registered land, a HR4 form will need to be completed and sent to the Land Registry. For unregistered land, a K13 form will need to be completed and sent to the Land Charges Department.
Matrimonial Home Rights are vital as they protect the individual who does not have a legal interest in the matrimonial home. It is especially important during a divorce, if the party who owns the property attempts to occupy the property alone or sell it. It is essential to register these rights against the property, to ensure they are indisputable and can be readily enforced at the appropriate time. During this process, it is important to plan what happens to the home following the finalisation of divorce and/or expiration of a continuation order.
This article is intended for guidance only and must not be relied upon for specific advice.