The family home is almost invariably the most important and most valuable matrimonial asset. The issue of what to do with the home can also be a matter of great contention and even more so where there are children involved and where the legal title is held in one party’s sole name.

Once divorce or dissolution proceedings have been initiated, the spouse or civil partner who is not a legal owner may be fearful of their spouse failing to meet their mortgage obligations, excluding them from occupation and making them homeless or selling the property whilst they remain in occupation. Protection is offered under s30 Family Law Act 1996 in the form of Home Rights. Home rights do not apply to cohabitants. Cohabitants would have to seek recourse by other means, under the Trust of Land and Appointment of Trustees Act 1996.

A home rights notice provides reassurance to the non-owning spouse that their partner cannot sell or transfer the matrimonial home without their knowledge. Although home rights give the right of occupation to the non-owning spouse, they do not grant any right of ownership in the family home.

Protection from Eviction

S30(2)(a) Family Law Act 1996 specifically provides that where the non-owning spouse is in occupation, they possess the “right not to be evicted or excluded from the dwelling-house or any part of it…except with the leave of the court”. In essence, the non-owning spouse is protected against eviction and exclusion without leave of the court.

The rights under this provision terminate on death of the owning spouse or on the grant of decree absolute or dissolution order, however the court has the power to direct that those rights continue beyond these events by virtue of s33(5) Family Law Act.

Right to Occupy

S30(2)(b) Family Law Act 1996 provides that where the non-owning spouse is not in occupation, they are entitled to “a right with leave of the court so given to enter into and occupy the dwelling house”.

If the non-owning party is not in occupation, they can exercise this right to occupy the family home with leave of the court. It is important to consider the circumstances under which they initially vacated or were excluded from the property.

Registering Home Rights

Home rights should be registered in order to be binding on any lenders or subsequent owners. This is of particular importance and should be completed as soon as possible, especially where the owning spouse has indicated an intention to take any steps to the detriment of the non-owing spouse. It is important to note that the home rights will not take priority over pre-existing charges, such as a mortgage.

In practice, once the notice is registered, the land registry will notify the registered proprietor that an entry relating to the matrimonial home has been made. Whilst this may serve to discourage third-party interest, this does not act as an absolute prohibition on the legal owner from selling or otherwise dealing with the property. An application for a restriction on the title of the property, made in Form RX1, can prevent such dealings.