When a marriage or civil partnership breaks down, one of the most urgent concerns is often: “Can I stay in the family home?”
Matrimonial home rights offer important legal protection to spouses or civil partners who do not own the property. These rights allow you to stay in the home and prevent anyone from selling or mortgaging the property without your knowledge.
This guide explains what matrimonial home rights are, when they apply, and how to register a home rights notice in England and Wales.
What are matrimonial home rights?
Matrimonial home rights arise under the Family Law Act 1996. They apply to a property that married couples or civil partners use as their main home. These rights are very important when a relationship ends. They protect a spouse or civil partner who is not the legal owner of the property.
Establishing legal rights over the matrimonial home is often a key issue during divorce or separation. Even if you are not named on the title deeds of the property, there is still protection under the law for you to live in the matrimonial home in some circumstances.
Important to note:
- Matrimonial home rights give a right of occupation, not ownership.
- They do not create a beneficial interest in the property.
- They only apply to married couples and civil partners — not to unmarried partners.
To ensure these rights are protected against third parties, it is usually advisable to register a notice against the property.
Do matrimonial home rights apply automatically?
No, this right is not automatic, and you may need to register a notice of matrimonial home rights against the property. Although matrimonial home rights exist in law, they are not fully protected against buyers or lenders unless they are registered at the HM Land Registry (or Land Charges Department for unregistered land).
If the rights are not registered, there is a risk that the property could be sold or remortgaged without the non-owning spouse being notified. Registering a home rights notice helps secure your position and provides visibility to anyone conducting searches of the property.
Why register matrimonial home rights?
This registration protects your right to remain living in the property. This can be particularly important if occupation of the property is in dispute whilst the divorce and matrimonial finances are being resolved.
It is important to note that if you are concerned about the occupation of a property on an immediate basis, and you require the ability to exclude your spouse from a property for urgent protection, then you should also consider whether you can and should apply for an Occupation Order. Consideration can then be given to the registering of a Homes Right Notice, if necessary, during this discussion. The Family Law team at Tees are able to advise you on ensuring your home rights are protected both in the short and long term.
Protecting your right to occupy the property
The registration also serves as a formal notification to potential buyers or lenders that the non-owning spouse has occupancy rights, which should prevent the property being sold, dealt with or mortgaged without the knowledge of the non-owning spouse.
Most diligent buyers, lawyers or lenders would investigate the notice and seek that it be resolved before any transfer or amendments are made to the title. This is particularly important if you have concerns about your spouse trying to hide or move assets to defeat any claims in your financial proceedings.
Applications can be made without prior notice
The application can usually be submitted without notifying your spouse, which is helpful in urgent or high conflict situations.
Delays at the Land Registry are common. However, you can speed up your application. To do this, provide the Land Registry with the right information. You may also want to get legal advice from the Tees Residential Conveyancing team if this applies to you. However, once the application has been registered, the legal owner of the property will be notified by the Land Registry, so it is not a completely anonymous process.
How long does a home rights notice last?
The notice lasts until you receive your Final Order (formerly Decree Absolute) in divorce. It is standard practice that this is not obtained until the matrimonial finances are resolved. This can therefore provide you with peace of mind and protection whilst financial negotiations are concluded. The notice can end early if the court orders its removal or if the applicant removes it.
How to register matrimonial home rights
The process for registering matrimonial home rights differs depending on whether the property is registered or unregistered. Generally, in England and Wales:
Step1 – Confirm legal ownership
- Joint Owners: If both spouses are named as legal owners, there is no need to register matrimonial home rights. Both parties’ interests are evident on the title, and both must consent to any sale or mortgage.
- Sole Ownership: If only one spouse is the registered legal owner, the non-owning spouse can apply to register their home rights.
Step2 – Check whether the property is registered
- To determine if the property is registered, submit a Land Registry Form SIM to apply for an official search of the index map.
Step 3 – Complete the Correct Form
- Unregistered Property: Complete Form K2 and submit it to the Land Charges Department. This creates a land charge that will appear on future property searches.
- Registered Property: Complete Form HR1 and send it to the Land Registry. This registers a formal notice on the property’s title.
Step 4 – Pay the Applicable Fee
- No fee is currently payable to register a Form HR1. Visit the HM Land Registry Fees page for more information.
Step 5 -Receive Confirmation of Registration
- Once your application is processed, you will receive a registration notification. The legal owner of the matrimonial home (the “registered proprietor”) will also be notified. Keep the confirmation document safe, as it may be needed in legal proceedings.
Important considerations
Registration does not create ownership rights: Registering matrimonial home rights protects the right to occupy the property but does not confer or determine ownership. Ownership disputes are typically resolved during divorce or separation proceedings.
Errors can cause delays: Incorrect applications can delay sales, remortgages or court proceedings. If you believe a notice has been wrongly registered against your property, specialist advice should be sought promptly.
Legal advice is strongly recommended
The registration process can be technical, particularly for unregistered land or urgent situations. The Residential Conveyancing and Family Law teams at Tees can help you through the process. They will ensure that you protect your rights.
Get advice on matrimonial home rights
If you are separating or divorcing and are concerned about your right to remain in your home, early legal advice can make a significant difference.
For tailored advice on registering matrimonial home rights, occupation orders, or resolving property issues on separation, contact the Family Law team at Tees today.
