It is possible that one spouse or civil partner owns legal title to the matrimonial home, while the other neither enjoys beneficial nor proprietary interest in the property. The Family Law Act (FLA) 1996 seeks to protect such a partner. It is always possible that the legal owner may seek to exclude his spouse or partner from the property or even sell it by taking advantage of his sole ownership. In such a circumstance, the non-owning spouse or civil partner who is in occupation of the matrimonial home has a right not to be excluded from it. Such a right can be claimed even without a court order. But if the non-owning spouse or partner is not in occupation of the property, he/she has the right to enter it with a court order. These rights are called home rights and aimed to protect the interest of the non-owning partner.
Such rights exist only to married couples and civil partners and not co-habitees. The overreaching of such a trust must also be considered.
Home rights can bind the purchaser for value only when they are registered. The non-owning spouse can register this right at any time before actual completion of the sale. If the concerned property is a registered land, the right should be entered on the charges register of the owner’s title. If it is an unregistered land, the right should be entered as Class F Land Charges in the Central Land Charges Registry against the name of the spouse who is the legal owner. Such a registration can be removed when one of the following occurs:
- the person who has benefits of the rights can make an application.
- absolute dissolution of marriage or civil partnership is decreed by the court.
- a court order for the removal of the charge.
- and, on death of the spouse or civil partner.
Home rights can be overreached by the appointment of a second trustee; it can either be waived or removed (if already registered) by the non-owning spouse or civil partner.
Under Schedule 4, para 4 of theFLA1996, when home rights have been registered, the buyer’s conveyancing solicitor has to include a condition on the contract that the registration shall be removed. And to do so, he has to negotiate with the non-owning spouse’s/civil partner’s solicitor to remove the charge and arrive at an amicable solution.
The buyer’s conveyancing solicitor should not recklessly assume that the non-owning spouse or partner shall not exercise his or her right to register the charge before the completion. It is safe to obtain an instruction from such a partner and seek their permission to proceed with the proposed agreement. An independent solicitor (to avoid conflict of interest) can be appointed to represent the non-owning spouse/partner. And to secure the transaction, a formal release of rights should be arranged wherein the non owning spouse/partner agrees not to enforce his/her home rights.
Photo courtesy: Garreth Wilcock
