Matrimonial Home Rights in Divorce
09 October 2018
By Family Law & Divorce Solicitor, Phil Thomas
An increasingly common theme for divorcing couples is the issue of Matrimonial Home Rights, which entitle both people in a marriage or civil partnership the legal right to live in the marital home. If one person wishes to exercise their Matrimonial Home Rights during divorce, then a Matrimonial Home Rights Notice can be registered against the family home.
What are Matrimonial Home Rights?
When a couple enter into a marriage or civil partnership each person automatically becomes entitled to Matrimonial Home Rights.
Matrimonial Home Rights give both spouses an automatic legal right to occupy the matrimonial home regardless of whose name the property is in. The purpose of this right is to prevent one spouse from being evicted from the family home by the spouse who has a legal right to occupy the property.
Matrimonial Home Rights only apply to a property which is used by the couple as the matrimonial home, i.e. a property in which the two of them live or have lived together as a couple. Matrimonial Home Rights do not extend to properties that have never been used as the matrimonial home such as 'buy to let' properties or commercial properties.
Matrimonial Home Rights not only apply to owned homes but to any property in which the couple have a legal right to reside, such as rental properties.
Matrimonial Home Rights Notice
Whilst spouses automatically gain Matrimonial Home Rights upon entering into marriage a common difficulty is that 3rd parties, such as potential buyers of the matrimonial home, would be unaware of these rights. This is because the Title Deeds for the home would not automatically state that there is a spouse in the property who has a right to occupy under their Home Rights.
A situation frequently arises during separation when the party who owns the property in their sole name decides to sell the home without the consent of the non-owning spouse. Such an action could result in the non-owning spouse losing their home.
To prevent such a situation from occurring the non-owning spouse can register their Matrimonial Home Rights with the Land Registry by way of a Matrimonial Home Rights Notice. This results in a written Notice being placed on the Title Deeds making it clear to any potential purchasers that a non-owning spouse has Matrimonial Home Rights to occupy the property.
Potential purchasers would not normally choose to purchase a property in which a Matrimonial Home Rights Notice has been registered. The granting of a Matrimonial Home Rights Notice does not give the non-owning spouse any new rights, all it does is warn 3rd parties of the rights that are already in existence.
Removal of Matrimonial Home Right's Notice
If your spouse has placed a Matrimonial Home Rights Notice upon a property owned in your sole name and you wish to remove that Notice, it can only usually be done in the following ways:
a) Death of either spouse or civil partner
b) Decree Absolute or Final Order being pronounced confirming that the marriage has ended or the civil partnership has been dissolved
c) The Court can grant an Order to remove the Notice
d) Person who placed the Notice consents to its removal
If any of the above conditions apply then an application can be made to the Land Registry for the Notice to be removed.
Improperly Registered Matrimonial Home Notice
In addition to the above, there are also grounds for the Notice to be removed if it has been improperly registered. The Notice would be improperly registered if it was placed against a property which has never been used as the matrimonial home. For example if it was registered against a buy to let property in which the parties never resided at together as a matrimonial couple.
The Notice would also be improperly registered if it was being used incorrectly. The purpose of a Notice is to protect the applicant's right to occupy the matrimonial home and should only be registered if the applicant wishes to continue living in the property, or intends on returning to the property.
A Matrimonial Home Rights Notice should not be used for financial gain or to intentionally frustrate the sale process. If the Notice has been registered for financial purposes as opposed to protecting a right to occupy, then a Court Order can be sought to remove that person's Home Rights from the property and the Notice can then be lawfully removed.
If a non-owning spouse is seeking to prevent the sale of the matrimonial home but is not living there and does not wish to return to the property, then there are other legal options available to prevent a sale from taking place rather than using a home rights Notice. Our Divorce Lawyers can assist and provide guidance on the correct avenue to take.