A Guide to Matrimonial Home Rights

Relationship breakdown can often be complex and emotional. A common issue that separating couples have is deciding who remains in the family home whilst other issues such as divorce, children and finances are being considered and negotiated. When advising on a relationship breakdown our family law solicitors often advise clients that, whilst negotiations are ongoing, they remain in the family home if appropriate and safe to do so.

However, there are sadly situations where one spouse is trying to remove the other from the property or sell the property before negotiations have taken place. Whilst such rights are automatic, our team of family law solicitors would recommend that the vulnerable partner register their matrimonial home rights as soon as their relationship breaks down. This blog will outline matrimonial home rights and some common questions associated with them.

What are matrimonial home rights?

Matrimonial home rights provide legal protection to spouses in relation to the family home in the event their partner attempts to forcibly remove them. This often happens during a relationship breakdown as parties understandably find it difficult to continue living together. These protections exist even if the property is in the sole name of one partner, the property is rented, or provided by a local authority. The rights only extend to the family home and would not cover other properties such as second homes or holiday properties.

The key matrimonial home rights include:

• The ability to occupy the family home and not to be excluded, except by court order;

• A spouse can apply for a court order to regain entry and to live there if they have moved out;

• register rights of occupation as a legal charge on the property hindering a spouse from selling the property;

• occupy the home as if a spouse was the legal owner even when they are not.

This is not an exhaustive list of matrimonial home rights but it highlights the high level of protection for a husband or wife who is not registered on the title deed of the family home.

When do they end and can they be challenged?

Matrimonial home rights usually come to an end once the Final Order on divorce has been granted, by order of the court or on the death of either a husband or wife.

The court can make an order to extend the matrimonial home rights in the event divorce is finalised but finances are still in dispute or if one spouse dies. However, where possible it is advisable to wait for issues such as finances to be agreed before applying for the Final Order to legally end the marriage for reasons such as preserving matrimonial home rights.

A partner can challenge matrimonial home rights and argue that they should not be registered. This could be in the event that the property was not the family home. if the parties had already divorced outside of England and Wales or the parties were never actually legally married.

Registering Home Rights – Registered Land

Most land is now registered with the Land Registry unless the criteria in the below section are applicable. A spouse can file a Home Rights Notice with the Land Registry using the HR1 form. This officially recognises a person’s right to live in the property and confers the partner’s matrimonial home rights over the family home.  You do not need the other person’s consent in order to make the application.

The HR1 form should also be sent to the other spouse so that they are aware of the application you have made whilst it is being considered by the Land Registry.

Registering Home Rights – Unregistered Land

It is possible that the land which the family home is unregistered land if it was purchased before 1990 and has not since been subjected to a mortgage.

In this event we would recommend speaking to our team and exploring your options as the situation can be more nuanced and may require specialist property law advice. However, you are still able to register matrimonial home rights if your home is on unregistered land and should seek to do so as soon as possible.

Can I use them if we are not married? 

The rights do not extend to unmarried couples who are cohabiting. If you are cohabiting with a partner and need legal advice, we provide advice to unmarried couples as to their rights so please contact us.

There is a third party with an interest in the family home

There are situations where a husband or wife may own the family home with a third party, for example one of their parents. The general position is that if a spouse is not the sole owner and owns jointly it with someone else then matrimonial home rights cannot be registered. However, case law can provide options to you in certain circumstances but we would suggest speaking with a family law solicitor.

Matrimonial home rights can be overlooked during a relationship breakdown but offer important legal protection for partners who are not on the deeds of the family home. They can provide much needed protection certainty whilst children, divorce and financial negotiations are underway.

Our team at Maguire Family Law are able to assist with all aspects of a relationship breakdown so please contact us if we are able to assist you further.