It is not uncommon for married couples to live in a property that is owned in the sole name of one party. If the relationship breaks down, the non-owning spouse can often feel in a vulnerable position.
When couples marry, the Family Law Act 1996 offers protection to the non-owning spouse. If the non-owning spouse is in occupation of the family home, they have a right not to be evicted or excluded from the family home or any part of it unless the other spouse obtains an order from the Court. If the non-owning spouse is not in occupation, then they have a right, with permission from the Court, to enter and occupy the property.
The Home Rights only apply to a property that is or has been the family home or was intended to be the family home. They do not extend to investment properties and cannot be used in relation to more than one property.
Whilst the Family Law Act automatically gives this right to the non-owning spouse on marriage, the fact that the property is owned in the sole name of the other spouse means that in theory they can sell or remortgage the property.
It is important that the non-owning spouse registers their Home Rights against the property at the Land Registry. This is a quick and simple step and means that the non-owning spouse will benefit from the protection provided by the Home Rights. Once the Home Rights have been registered, the spouse who owns the property will not be able to sell or remortgage the property without the written consent of the non-owning spouse.
Home Rights are brought to an end on:
- The death of either spouse
- The termination of the marriage or civil partnership (unless they are extended by the Court)
- An order from the Court removing the Notice
- The non-owning spouse giving their consent to the removal of the Notice
The registration of the Home Rights is a relatively quick and simple step that a non-owning spouse can take to protect themselves on the breakdown of the relationship. It does not alter the legal or beneficial ownership of the property but protects them against losing their home following the breakdown of the relationship. It acts as a holding position whilst discussions take place in relation to the wider issues that need to be addressed such as in relation to meeting the needs of any children and how the family assets should be divided.