Workshop: Matrimonial home rights on a purchase or sale of residential property

Matrimonial home rights are granted by the Family Law Act 1996 as a way of protecting a spouse or civil partner's right to occupy the marital home. The interest constitutes a charge over the property and is usually required where the spouse or civil partner claiming the rights is not one of the registered proprietors.

In the case of Abdullah v Westminster City Council [2012] H.L.R 5 the local authority granted the appellant's husband and mother a joint tenancy of a two-bedroom house. The appellant, her husband, mother and son all lived in the property and, for various reasons the husband refused to share his bedroom with the appellant. As such, the appellant and her son slept in the living room. On two occasions in July 2009 and June 2010 the appellant's own mother asked her to leave the property. Each time the appellant applied to the local authority for housing under part 7 of the Housing Act 1996 which deals with homelessness and threatened homelessness. On each occasion the local authority decided that the appellant was not homeless on the basis of section 30(2) of the Family Law Act 1996 and that this right was enforceable against her mother as well as her husband. As such, the appellant had a right to remain in the property despite not being a named proprietor except under an order of ?the court.

While the case cited above demonstrates a situation where the home rights applied contrary to the wishes of the appellant, it is a good case to explain how far the Family Law Act can go.

The Land Registry guidance explains that the spouse's or civil partner's interest is a charge on the property which is protected by an agreed notice.

If you are acting in the sale or purchase of a property which is subject to home rights then you should note that there are only a few ways in which to cancel the registered notice; these are:

1. supplying a death certificate of either spouse or civil partner;

2. supplying an official copy of the decree absolute;

3. supplying an official copy of a court order which ends the home rights;

4. supplying an official copy of the final dissolution etc relating to the civil partnership; and

5. supplying a release of the home rights, signed by the spouse or civil partner.

?As such, you should ensure that before the transfer of the property is completed there are adequate mechanisms in place for the Home Rights to be removed from the property. You may decide that the best way to approach this is by the use of solicitors undertakings to provide the necessary documents or by applying for the home rights removal prior to completion ?taking place.

It is also worth keeping this in mind when dealing with the purchase of a property for a couple who only want the property to go into one of their names. Firstly, remember, who is your client? And secondly, you will need to advise that client on all aspects of trusts which may arise and matrimonial home rights should their marriage or civil partnership not succeed.