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Matrimonial Home Rights

WHAT ARE MATRIMONIAL HOME RIGHTS?

'Matrimonial Home Rights' is the name given to a collection of statutory rights which seek to protect a spouse in the occupation of the matrimonial home. The courts initially attempted to develop a set of principles based around an implied licence giving a wife a right to remain in possession (the 'deserted wife's equity'), but this was considered to be contrary to authority by the House of Lords in National Provincial Bank Ltd v Ainsworth [1965] AC 1175. Parliament subsequently stepped in by providing statutory rights of occupation with the Matrimonial Homes Acts of 1967 and 1983 and these were subsequently replaced with matrimonial home rights in the Family Law Act 1996. Although the Act is primarily concerned with 'spouses', the rights were extended to civil partners by the Civil Partnership Act 2004. The scheme of the Family Law Act 1996, so far as it relates to matrimonial home rights, is quite complicated, but essentially, it does three things:

1. It gives a non-owning spouse certain rights to occupy the matrimonial home, and to enforce the same by what are called 'occupation orders'.

2. It provides that in certain circumstances one spouse's rights of occupation shall be a charge on the estate of the other, and that subject to registration, such a charge can bind third parties, including mortgagees.

3. It contains a number of procedural provisions which seek to protect the non-owning spouse in occupation in the event of proceedings for possession by a mortgagee.

These are dealt with below:

1. THE RIGHT TO OCCUPY THE MATRIMONIAL HOME

Section 30 of the Act, deals with 'matrimonial home rights'. It applies where one spouse or civil partner (Person A) is entited to occupy a dwelling-house by virtue of (i) a beneficial estate or interest or contract, or (ii) any enactment giving that spouse the right to remain in occupation, and the other spouse or civil partner (Person B) is not so entitled.

In those circumstances, Person B has the following matrimonial home rights:

(a) if in occupation, a right not to be evicted or excluded from the dwelling-house or any part of it by Person A except with the leave of the court given by an order under section 33;

(b) if not in occupation, a right with the leave of the court so given to enter into and occupy the dwelling-house.

Section 30 also contains two important qualifications:

Subsection (7) provides that the section does not apply to a dwelling-house which has at no time been, and which was at no time intended by the spouses to be, a matrimonial home of theirs.

Subsection (8) provides that a spouse's matrimonial home rights continue (a) only so long as the marriage subsists, except to the extent that an order under section 33(5) otherwise provides, and (b) only so long as the other spouse is entitled as mentioned in subsection (1) to occupy the dwelling-house, except where provision is made by section 31 for those rights to be a charge on an estate or interest in the dwelling-house.

Accordingly, subject to an order of the court under section 33(5), extending the matrimonial home rights where it is just and reasonable to do so, the rights will subsist until: the death of the other spouse or civil partner; the termination of the marriage or civil partnership; or the determination of the spouse or civil partner's entitlement to occupy the dwelling-house.

2. MATRIMONIAL HOME RIGHTS AS A CHARGE ON THE ESTATE

Sections 31(1) - (3) provide that where Person A is entitled to occupy the dwelling-house by virtue of a beneficial estate or interest, Person B's matrimonial home rights are a charge on the estate or interest and shall have the same priority as if it were an equitable interest created at whichever is the latest of the following dates (a) the date on which Person A acquires the estate or interest, (b) the date of the marriage, and (c) 1st January 1968.

Section 31(8) provides that even though Person B's matrimonial home rights are a charge on an estate or interest in the dwelling-house, those rights are brought to en end by (a) the death of Person A, or (b) the termination (otherwise than by death) of the marriage, unless the court directs otherwise by an order made under section 33(5). 

It should be emphasised that the right of Person B to enforce his or her matrimonial home rights charge against Person A is not dependant on registration (Hoggett v Hoggett (1979) 39 P & CR 121). However, in order to protect the charge against third parties, section 31(10) enables the charge to be registered:

3.PROCEDURAL PROVISIONS AFFECTING MORTGAGE POSSESSION ACTIONS

There are two main provisions:

1. Giving notice: Before commencing mortgage possession proceedings, a mortgage lender is required to make an official search at the Land Charges Department and Land Registry to ascertain whether any matrimonial home rights have been protected by registration (see above) and if so to give notice of the proceedings to the person on whose behalf the registration as made: section 56(2).

2. Joining in 'connected persons': Section 55 enables a 'connected person' who is not already a party, to apply to be joined into the proceedings in the following circumstances: (a) the connected person is enabled by sections 30(3) or 30(6) to meet the mortgagor's liabilities under the mortgage; (b) he has applied to the court before the action is finally disposed of; and (c) the court sees no special reason against his being made a party to the action and is satisfied (i) that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor's liabilities or obligations as might affect the outcome of the proceedings; or (ii) that the expectation of it should be considered under section 36 of the Administration of Justice Act 1970.

'Connected person' means in relation to any person, that person's spouse, former spouse, cohabitant or former cohabitant (section 54(5).

It should also be noted that under section 30(3), where a spouse is entitled to occupy a dwelling-house, any payment or tender made or other thing done by that spouse in or towards satisfaction of any liability of the other spouse in respect of mortgage payments is as good as if made or done by the other spouse. A lender can therefore accept mortgage payments from a non-owning spouse without creating any new proprietary rights or interests in the paying spouse, although a well-advised lender should normally clarify the basis on which payments are being made and if it accepts the payments otherwise than in accordance with a court order made under the Act, to expressly stipulate this in open correspondence.

PRACTICE AND PROCEDURE

For practice and procedure in relation to the registration of matrimonial home rights under the Family Law Act 1996, see the HM Land Registry Public Guide 4 (June 2009)